Research studies on the organisation and functioning of the justice system

Research studies on the organisation and functioning of the justice system in five selected countries (China, Indonesia, Japan, Republic of Korea and Russian Federation) Japan Final Report for United Nations Development Programme, Viet Nam Date: 30 July 2010 Contributors: Associate Professor Luke Nottage (Sydney University) Professor Kent Anderson (Australian National University) [Part 4.12 and the criminal justice parts of Part 8] Professor Makoto Ibusuki (Seijo University) [Parts 2, 4.5 and 6.3.1(b)] Professor David Johnson (University of Hawai’i) [Parts and 5.1.2] The views expressed in this publication are those of the author(s) and not necessarily represent those of the United Nations, including UNDP, or the UN Member States Page | Table of Contents Table of Contents Political, Cultural, Historical and Socio-economic Context 1.1 Major Historical Events 1.2 Economic System 1.3 Political System 10 Leadership and Authority 11 Aims, Objectives and Visions for the Justice Sector 14 Institutions 21 Accountability 22 Constitutional Structures 24 1.4 Other Actors 25 Local Bar Associations 25 Universities 25 Business Sector 26 Non-Governmental Organisations 27 Conclusion 27 Criminal Investigation 29 2.1 Organisation 29 2.2 Model 31 2.3 Tasks and Functions 32 2.4 Relations 34 2.5 Mechanisms 35 Coordination 35 Administrative 35 Oversight and Inspection 37 2.6 Criminal Investigators 37 Conclusion 38 Prosecution/Procuracy 40 3.1 Organisation 40 3.2 Model 40 3.3 Tasks and Functions 43 3.4 Relations 45 3.5 Mechanisms 46 Prosecutorial Oversight 46 Administrative Management 48 Oversight and Inspection Mechanisms 48 Page | 3.6 Career and Transparency Issues 49 Conclusion 51 Court System 53 4.1 Role and Position 53 4.2 Organisation 54 4.3 Model 54 4.4 Tasks and Functions 56 4.5 Relations 56 Investigation Agencies, Security Agencies, Prosecution Agencies 56 State Agencies, Legislative Branch, Executive Branch 57 4.6 Judicial Education and Training 58 4.7 Career Issues 61 4.8 Guarantee of Tenure 63 4.9 Judicial Interpretation 63 4.10 Adjudication 64 4.11 Jurors 70 Role 71 Appointment and Training 71 Relationship with Judges 71 Oversight 72 4.12 Regional Delimitations 72 4.13 Judicial Independence 74 4.14 Appeals 76 4.15 Positioning 82 4.16 Judicial Administration 82 4.17 Oversight and Accountability 84 4.18 Other Court Staff 85 Conclusion 86 Civil and Criminal Judgement Enforcement 89 5.1 Types of Enforcement 89 Civil 89 Criminal 89 Administrative 90 Labour 90 5.2 Organisation 91 5.3 Model 92 5.4 Tasks and Functions 93 5.5 Relations 93 5.6 Process 94 Page | 5.7 Mechanisms 94 Administrative 94 Oversight and Inspection 95 Conclusion 96 Lawyers and Other Legal Services 99 6.1 Organisation 99 6.2 State Regulation 101 6.3 Lawyers 102 Role in Criminal Cases 103 Role in Civil Cases 104 6.4 Education and Training of Lawyers 107 Other Involvement in Legal Education 107 6.5 Disciplining Lawyers 108 6.6 Dispute Resolution 110 Conclusion 116 Justice Sector Reform 118 7.1 Initiation 118 7.2 Responsibility 119 7.3 Design 120 7.4 Review 120 7.5 Implementation 120 7.6 Evaluation 121 7.7 Remedies 121 7.8 Oversight 122 Conclusion 122 Conclusions 124 8.1 Strengths and Weaknesses 124 8.2 Challenges and Controversies 125 8.3 Current Reforms 126 8.4 Issues for Future Reform 126 Bibliography 128 Glossary 136 Page | Political, Cultural, Historical and Socio-economic Context Japan is a densely populated archipelago in North-East Asia, and remains the second largest economy in the world (on one measure) with a very high per capita GDP Foreign pressure forced the country to reopen to the world in 1853, prompting large-scale efforts to modernise the economy, society and legal system French and especially German law were main influences in enacting six major codifications in the late 19th century, but American law has played a major role in the US-led Occupation (1945-51) and in a “third wave” of law reforms since the 1990s Yet Japan continues to demonstrate quite ambiguous relationships towards modernity, “the West” and law itself {Tanase 2010} The study of Japanese law has led to new paradigms or theories being developed, particularly by foreign commentators writing in Western languages {Baum and Nottage 1998}, to explain phenomena seemingly showing that law remains quite unimportant in socio-economic ordering {Abe and Nottage 2006} A central debate has concerned low per capita civil litigation rates, compared to other similar economies, especially in Europe and the United States {Nottage and Wollschlaeger 1996} The “culturalist” theory explains low levels of litigation on the basis that “the Japanese don’t like law” {Noda 1976}, due primarily to the legacy of a Confucian tradition – emphasizing harmonious and hierarchical social relationships “Institutional barriers” theory instead argues that “the Japanese can’t like law” {Haley 1991} Access to justice is restricted by limited numbers of legal professionals, and problems in court proceedings, so claimants cannot afford to sue and thus not obtain the outcomes nominally prescribed by the law “Social management” theory suggests that “the Japanese are made not to like law” Institutional barriers are maintained particularly by social elites, to resolve social problems outside the courts, which might lead society in unpredictable directions Often, alternative dispute resolution procedures and resources are inaugurated to facilitate this approach Some of the theorists adopting this perspective, especially in its earlier incarnations, have been skeptical about this management of social problems {Upham 1987} But others suggest that it may be justified under more communitarian approaches to contemporary democracy {Tanase 2010} By contrast, “rationalist” theory asserts that “the Japanese like law”, acting in its shadow {Ramseyer and Nakazoto 1998} Despite high barriers to bringing suit, Japanese law is predictable – at least in some areas, and compared to countries like the United States – so claimants not even need to file suits to be able to obtain favourable settlements out of court Much rationalist theory also relies on quantitative social science, particularly econometrics However, more recent “hybrid” theory combines more qualitative methodology, and takes a more eclectic and nuanced approach to show how “the Japanese sometimes like law, but sometimes don’t” {Milhaupt and West 2004; Nottage et al eds 2008} This chapter concludes by suggesting that the third wave of reforms to Japan’s justice sector now are Page | mostly driven by “institutional barriers” theory, but that the variable effects so far suggest that cultural or social factors remain 1.1 Major Historical Events A coalition of some powerful tribes, governed by customary norms, began to unify Japan as a state in the 5th century {Abe and Nottage 2006} A centralised regime was gradually organised, with the Emperor at its apex, but the law was still unwritten and undifferentiated from custom The first effort at codifying the law began in the latter half of the 7th century, when Chinese legal codes were transplanted To strengthen its power, Japan’s Imperial Court eagerly adopted the Chinese legal system, as well as the Chinese governmental system and tax system However, to make the transplanted law conform to the Japanese reality, both ancient customs and emerging practices came to be incorporated into the legal codes The effort to develop a strong centralised regime soon collapsed, as a manorial system developed Powerful nobles obtained a sort of extraterritorial jurisdiction, and made their own laws in their vast manors This legal pluralism was further accelerated when the warriors who had been the guardians of the manors of nobles began to claim their own rule over manors and to make their own laws While formal laws enacted by the Imperial Court were still nominally valid all over the country, their effectiveness was considerably curtailed After the warrior class established their own central government in the early 12th century, legal pluralism remained prevalent While both the Shogunate, the warriors' central government, and the Imperial Court enacted laws which had ostensibly national validity, the manors of nobles and the feudalities of warriors are governed by their own laws The country was only really unified in late 16th century after a bloody civil war, by a powerful warrior, Hideyoshi Toyotomi Laws with substantial national validity were enacted Toyotomi's rule was short, however After his death, Ieyasu Tokugawa came to power and founded a Shogunate which lasted for fifteen generations, and completed the unification of the law Although the Tokugawa Shogunate granted warlords both legislative and judicial powers in their territories, it restricted warlords' legislative powers within demarcations set by its own laws and put lawsuits brought by a resident of one warlord's territory against a resident of another warlord's territory under its own jurisdiction In addition, in the middle of the 17th century, the Tokugawa Shogunate closed the country, except for limited trade with China and the Netherlands, to block the influence of Christian religion over the Japanese people and to prevent warlords from accumulating wealth and weapons by foreign trade This isolation policy continued until the mid 19th century, with Japanese law developing without foreign influence and acquiring some distinctive features On the one hand, Tokugawa era law remained predominantly administrative law, used by the Shogunate to help maintain national unity On the other, largely in the form of precedents, detailed legal rules developed dealing with secured loans, commercial notes and so on However, the ideological underpinning was that law was not available to citizens in the form of “judiciable rights”, but only through the benevolence of rulers More Page | recent research, by contrast, suggests that functional equivalents to Western rights consciousness, and greater variability and dissent did exist in Tokugawa village practice {Ooms 1996} The isolation policy came to an end in 1853, with the arrival of American warships Due to related political turmoil, the Tokugawa Shogunate became weak and surrendered its power to the Emperor in 1867 This “Meiji Restoration” established a new regime, with the Emperor Meiji at its apex The Meiji Government urged the creation of a strong monarchy, and promoted the modernisation of the legal system The main reason for the latter was to revise disadvantageous treaties that the Tokugawa Shogunate had concluded with the United States and European countries, since Japan first had to be recognised as a modern sovereign state by those countries The Meiji Government sent officials around the world to study modern Western law It was first attracted primarily by French law, but ultimately enacted various codes drawing more on German law towards the end of the 19th century In particular, the Constitution of Imperial Japan (the Meiji Constitution) was enacted in 1889, on the model of the Prussian Constitution Japan became a modern constitutional monarchy, at least in appearance Under the Meiji Constitution, sovereignty resided in the Emperor and all governmental organs including the judiciary were regarded as mere assistants to the Emperor The Constitution did include a bill of rights, but provided that those rights were guaranteed only within limits set by legislation Thus, the Imperial Diet (parliament) could arbitrarily restrict the constitutional rights of the people After Japan’s defeat in World War II, democratisation of its polity and society began during the Occupation (1945-51) under the control of the US General Douglas Macarthur, Supreme Commander of the Allied Powers The new Japanese Constitution was enacted in 1946, and came into effect the following year {Hook and McCormack 2001} It declared that sovereignty resided in the people, and that the Emperor was nothing more than the symbol of the state and the unity of the people It also declared that constitutional rights were inviolable, and a system of judicial review was therefore institutionalised This Constitution has never been amended and still lies at the very heart of the Japanese legal system In 2000, the Diet resumed a detailed study of possible reforms, and recent surveys have suggest considerable public support for certain constitutional amendments But it remains uncertain whether major changes will result for example from any or all of the views expressed in the 2005 Report by the upper House of Councillors () Japanese law was therefore formed in the crucible of comparative law, and continues to intrigue comparative lawyers It borrowed early on from China, from continental Europe in the late 19th century, and from Anglo-American law particularly during Japan’s Occupation following World War II In the wake of economic stagnation and accelerating deregulation over the 1990s, some commentators now proclaim “the Americanisation of Japanese law” {Kelemen and Sibbitt 2002} However, it has also been framed by international law, law reformers remain attracted to broader “global standards”, and it has a long and strong indigenous legal tradition Accordingly, Japanese law can be expected to remain an archetypical “hybrid” legal system, not readily characterised as belonging to any particular “legal family” {cf Merryman et al 1994} Page | [Q2.1.] Several general implications might be drawn for countries interested in Japan’s experiences in adopting and adapting modern “Western” law to meet local circumstances, particularly in Asia, including perhaps Vietnam First, the “reception” process works better when it is not rushed Secondly and relatedly, it works better when several overseas countries are compared that have somewhat different legal and socio-economic traditions (Japan’s Meiji reformers, for example, looked very closely at France, Germany and England) Thirdly, it helps both to send out researchers to the countries of interest for significant periods rather than just short visits (even in the Meiji period, some spent many years overseas, eg even qualifying and working as a barrister in London, and Japan’s present Supreme Court sends dozens of judges for one-year research programs all around the world, including recently Australia) Japan also involved foreign advisors who stayed in Japan for many years, often decades (eg Professor Boissonade from Paris, who helped draft several Japanese Codes) Finally, Japan’s experience shows the importance of placing trust in (a) leading commentators from leading university law faculties, and (b) a highly professional and incorruptible judiciary which can have the confidence to develop legislation and case law to meet the country’s own and evolving socio-economic circumstances (especially if the legislature cannot or will not act quickly or extensively enough) 1.2 Economic System Japan is a regulated market economy with some significant free market elements Those elements have become more important as the country embarked on privatisation and deregulation from the 1980s, and especially from the mid-1990s Post-War Japan has often been described as a “coordinated market economy”, closer to Germany or France than to a “liberal market economy” like the US or the UK {Hall and Soskice 2001} However, on some measures such as the size of the public service or government-owned enterprises, the Japanese economy is closer to the Anglo-American end of the spectrum {Nottage 2001} In addition, until the economy was mobilised for the War effort from the 1930s, corporate finance depended much more on stock markets than loans from banks, and there existed intense competition among a multitude of banks {Alexander 2008} Some even argue that even the post-War Japanese economy (and law-related behaviour) has been driven primarily by conventional competitive market forces and economic actors {Ramseyer and Nakazoto 1999; Miwa and Ramseyer 2006} Most commentators nonetheless insist that this revisionist view is too simplistic, and that Japan does retain some distinctive economic institutions {Nottage 2010} For example, “main banks” (usually the largest lenders, often with a small shareholding) continue to play an important – although arguable diminishing – monitoring function over the managers of their customer firms {Puchniak 2008} This substitutes for the paucity of hostile takeovers in Japan {Puchniak 2009}, which also theoretically discipline managers of target firms so they work in the interests of those firms’ shareholders, although the threat of hostile takeovers has become more real in recent years {Milhaupt and Pistor 2008} Main banks also still Page | form the core of “horizontal” keiretsu (corporate groups, much looser than the pre-War, often family-centred zaibatsu combines), although those groups have been affected by financial markets deregulation and mega-mergers (eg of Mitsui and Sumitomo banks) particularly following Japan’s financial crisis of 1998 Japan also retains some powerful “vertical” keiretsu especially in the manufacturing sector (eg Hitachi’s corporate group), and firms within the keiretsu also assist in mutual monitoring and fundraising Another more “coordinated” aspect of the post-War Japanese economy is the important role played by core employees, not just shareholders or bank creditors, even within listed companies The “lifelong employment” system only emerged in the 1950s and never applied to a majority of firms or employees, and its scale has diminished further since the late 1990s due to economic pressures and some labour market deregulation, but the system still presents a powerful ideal {Wolff 2008} Labour unions are often organised for firms rather than across industries, and strikes or industrial action remain comparatively rare The post-War Japanese economy has also been characterised by strong government-business relations For example, under the “convoy system” of financial markets regulation, licensing and other requirements from the Ministry of Finance made it difficult to enter most market segments, and then each financial institution generally moved at the speed of the slowest market participant This system only started to come under pressure when Japanese firms began to raise funds through deregulating bond markets in the 1980s, and as the government embarked on broader deregulation from the late 1990s due to international competitive pressures and the collapse of major financial institutions {Amyx 2004} The Ministry of International Trade and Industry (MITI, renamed METI from 2001) also extended pre-War techniques to promote industrial policy in certain sectors {Johnson 1982}, but it had difficulty in directing some sectors or individual firms – the relationship instead was largely consensus-based {Callon 1995} More generally, central and (sometimes to a lesser extent) local government tried to implement various policies through technically non-binding “administrative guidance”, but this phenomenon also represented consensusbased “authority without power” {Haley 1991} 1.3 Political System One key concern of the Meiji era reformers was primarily instrumental: to develop a modern “Western” legal system so as to renegotiate unequal treaties with foreign imperial powers, but also to support economic development This attitude also underpinned persistent calls for a “strong State”, including stable political leadership and close government-business relations However, for more than 150 years other influential reformers have also pursued more idealistic objectives: to promote rights-based democracy and more decentralised decision-making This has tended to promote more varied and complicated political and economic configurations One or the other philosophies has generally prevailed during different historical periods For example, democracy in the Taisho era (1912-26) was characterised by a proliferation of political parties and socio-economic Page | 10 LINNAN, D (Ed.) Legitimacy, Legal Development & Change: Modernization Ashgate Law & ARONSON, B (2007) Elite Law Firm Mergers and Reputational Competition: Is Bigger Really Better? An International Comparison Vanderbilt Journal of Transnational Law, 5, 763-832 BAE, S (2007) When the State No Longer Kills: International Human Rights Norms and Abolition of Capital Punishment, New York, State University of New York Press BAUM, H., AND LUKE NOTTAGE (1998) Japanese Business Law in Western Languages: An Annotated Selective Bibliography, Colorado, Fred B Rothman & Co BAYLEY, D H (1991) Forces of order: policing modern Japan, Berkeley, University of California Press BENNETT, F G (1999) Civil Execution in Japan: The Legal Economics of Perfect Honesty Nagoya Journal of Law and Politics, 177, 1-34 BENNETT, F G (2009) Getting Property Right: 'Informal' Mortgages in the Japanese Courts Pacific Rim Law & Policy Journal, 18, 463-509 http://ssrn.com/abstract=1541102 BURNHAM, D (1996) Above the Law: Secret Deals, Political Fixes, and Other Misadventures of the U.S Department of Justice, New York, Scribner's CALLON, S (1995) Divided sun: MITI and the breakdown of Japanese high-tech industrial policy, 1975-1993, Stanford, Calif., Stanford University Press CARTER, L (1974) The Limits of Order, Lexington, Lexington Books CHAN, K (2009) The Emergence of Large Law Firms in Japan: Impact of Professional Legal Ethics Legal Ethics, 11(2) 154-80 CLACK, M (2003) Caught Between Hope and Despair: An Analysis of the Japanese Criminal Justice System Denver Journal of International Law and Policy, 31, 525 DEAN, M (2002) Japanese Legal System, London, Cavendish ETZIONI, A (1964) Modern organizations, Englewood Cliffs, N.J., PrenticeHall FEELEY, M., AND SETSUO MIYAZAWA (2002) The Japanese Adversary System in Context: Controversies and Comparisons, London, Macmillan FLEMMING, R., PETER NARDULLI AND JAMES EISENSTEIN (1992) The Craft of Justice: Politics and Work in Court Communities, Philadelphia, University of Pennsylvania Press FOOTE, D (1992) The Benevolent Paternalism of Japanese Criminal Justice California Law Review, 80, 317 FOOTE, D (1999) Nichibei hikaku keiji shihô no kôgi wo furikaette [Perspectives from Teaching Comparative US-Japan Criminal Justice] Jurisuto, 1148, 165-173 Page | 129 FOOTE, D (2007) Introduction and Overview: Japanese Law at a Turning Point IN FOOTE, D (Ed.) Law in Japan: A Turning Point Seattle, University of Washington Press FUJIKURA, K (1996) Japanese Law and Legal Theory, New York, New York University Press GARLAND, D (1990) Punishment and Modern Society: A Study in Social Theory, Chicago, University of Chicago Press GOFFMAN, E (1961) Encounters: two studies in the sociology of interaction, Indianapolis, Bobbs-Merrill GREENBERG, D., AND VALERIE WEST (2008) Siting the Death Penalty Internationally Law & Social Inquiry, 33, 295-343 HALEY, J (1991) Authority without Power: Law and the Japanese Paradox, New York, Oxford University Press HALEY, J (1998) The Spirit of Japanese Law, Athens, University of Georgia Press HALEY, J O 2007 The Japanese Judiciary In: FOOTE, D (ed.) Law in Japan: A Turning Point Seattle: University of Washington Press HALL, P A & SOSKICE, D W (2001) Varieties of capitalism: the institutional foundations of comparative advantage, Oxford [England] ; New York, Oxford University Press HAMADA, S (1992) Jihaku no Kenkyu, Tokyo, 31 Shobo HAMAI, K., AND THOMAS ELLIS (2008) Japanese Criminal Justice: Was Reintegrative Shaming a Chimera Punishment & Society, 10, 25-46 HAMANO, R (2007) The Turn to Law: The Emergence of Corporate Law Firms in Japan IN ALFORD, W (Ed.) Raising the Bar Cambridge, Mass, Harvard University Press HENDERSON, D (1965) Conciliation and Japanese Law: Tokugawa and Modern, Seattle, University of Washington Press HIRANO, R (1999) Sanshinsei no Saiyo ni yoru ‘Kakushin Shiho’ o: Keiji Shiho Kaikaku no Ugoki to Hoko Juristo, 2-15 HOOD, R., AND CAROLYN HOYLE (2008) The Death Penalty: A Worldwide Perspective, New York, Oxford University Press HOOK, G., AND GAVAN MCCORMACK (2001) Japan's Contested Constitution: Documents and Analysis, London, Routledge II, T (2009) Young Migrants from Big Cities: Measures for Dealing with the Shortage of Legal Services in Japan Journal of Japanese Law, 27, 59-80 ISHIDA, K (2006) A Comparative Study of the Attorney Discipline System in Japan and Washington State Hoshakaigaku, 65, 96-115 ISHIDA, K (2009) The Growing Influence of "Lawyer Substitutes" on Citizens' Access to Legal Services Waseda Bulletin of Comparative Law, 27, 15-48 ISHIDA, K & TAYLOR, V (2008) The Legal Profession of Japan IN NOTTAGE, L (Ed.) CCH Japan Business Law Guide Singapore, CCH Asia Page | 130 JOHNSON, C (1972) Conspiracy at Matsukawa, Berkeley, University of California Press JOHNSON, C A (1982) MITI and the Japanese miracle: the growth of industrial policy, 1925-1975, Stanford, Calif., Stanford University Press JOHNSON, D (2002) The Japanese Way of Justice: Prosecuting Crime in Japan, New York, Oxford University Press JOHNSON, D (2002) The Japanese Way of Justice: Prosecuting Crime in Japan, New York, Oxford Universty Press JOHNSON, D (2005) The Death Penalty in Japan: Secrecy, Silence, and Salience IN AUSTIN, S., AND CHRISTIAN BOULANGER (Ed.) The Cultural Lives of Capital Punishment: Comparative Perspectives Palo Alto, Stanford University Press JOHNSON, D (2006) Nihon no Kensatsu Soshiki [The Organization of Prosecution in Japan IN KIKUTA, K., HARUO NISHIMURA, AND SETSUO MIYAZAWA (Ed.) Shakai no Naka no Keiji Shiho to Hanzaisha [Criminals and Criminal Justice in Japanese Society] Tokyo, Nihon Hyoronsha JOHNSON, D (2006) Japan’s Secretive Death Penalty Policy: Contours, Origins, Justifications, and Meanings ASIAN-PAC L & POL’Y J., 7, 62-124 JOHNSON, D (2007) You Don’t Need a Weather Man to Know Which Way the Wind Blows: Lessons from the United States and Korea for Recording Interrogations in Japan Ritsumeikan Law Review, 1-34 JOHNSON, D (2008) The Homicide Drop in Postwar Japan Homicide Studies, 12, 146-160 JOHNSON, D (2009) Early Returns from Japan's New Criminal Trials The Asia-Pacific Journal, Vol 36-3-09 JOHNSON, D., AND FRANKLIN ZIMRING (2009b) Death Penalty Lessons from Asia The Asia-Pacific Journal, 39-1-09, 1-27 JOHNSON, D & ZIMRING, F (2009) The Next Frontier: National Development, Political Change, and the Death Penalty in Asia, New York, Oxford University Press KELEMEN, D., AND ERIC SIBBITT (2002) The Americanization of Japanese Law University of Pennsylvania Journal of International Economic Law, 23, 269-323 KISS, L (1999) Reviving the Criminal Jury in Japan LAW AND CONTEMPORARY PROBLEMS, 62, 261 KITAGAWA, T & NOTTAGE, L (2007) Globalization of Japanese Corporations and the Development of Corporate Legal Departments: Problems and Prospects IN ALFORD, W (Ed.) Raising the Bar Cambridge, Mass, Harvard University Press KUBO, H (1989) Nippon no Kensatsu, Tokyo, Kodansha LEVIN, M., AND VIRGINIA TICE (2009) Japan’s New Citizen Judges: How Secrecy Imperils Judicial Reform The Asia-Pacific Journal, 19-6-09 Page | 131 MARTIN, C (2008) Binding the Dogs of War: Japan and Constitutionalizing of Jus Ad Bellum University of Pennsylvania Journal of International Law, 30, 267-357 MCALINN, G., AND LUKE NOTTAGE (2005) Changing the JCAA Rules: Improving International Commercial Arbitration in Japan Journal of Japanese Law, 18, 23-36 MCALINN, G (Ed.) (2007) Japanese Business Law, Hague, Kluwer Law International MERRYMAN, J., DAVID CLARK AND JOHN HALEY (1994) The Civil Law Tradition: Europe, Latin America and East Asia, Charlottesville, Michie MILHAUPT, C., AND MARK WEST (2004) Economic Organizations and Corporate Governance in Japan: The Impact of Formal and Informal Rules, Oxford, Oxford University Press MILHAUPT, C J & PISTOR, K (2008) Law and capitalism: what corporate crises reveal about legal systems and economic development around the world, Chicago, Ill ; London, University of Chicago Press MITSUI, T (2003) Kokuhatsu! Kensatsu ‘Uragane Zukuri.’ Tokyo, Kobunsha MIWA, Y O & RAMSEYER, J M (2006) The fable of the keiretsu: urban legends of the Japanese economy, Chicago, The University of Chicago Press MIYAKE, H (2000) Enforcement of Judgments IN TANIGUCHI, Y., REICH, P & MIYAKE, H (Eds.) Civil Procedure in Japan Juris, New York MIYAZAWA, S (1992) Policing in Japan: A Study on Making Crime, New York, State University of New York Press MIYAZAWA, S (2007) The Politics of Judicial Reform in Japan: The Rule of Law at Last? IN ALFORD, W (Ed.) Raising the Bar Cambridge, Mass, Harvard University Press MIYAZAWA, S (2008) The Policy of Increasing Punitiveness and the Rising Populism in Japanese Criminal Justice Policy Punishment & Society, 10, 47-77 MURAYAMA, M (1999) Does a lawyer make a difference? Effects of a lawyer on mediation outcome in Japan International Journal of Law, Policy & the Family, 13, 52-77 MURAYAMA, M (2007) Expanding Access to Lawyers: The Role of Legal Advice Centers IN SANDEFUR, R (Ed.) Access to Justice: Classical Approaches and New Directions Bingley, U.K., Emerald NAKAJIMA, H (2006) Kenri Jitsugen no Jikkosei Kakuho to Minji Tetsuzukiho no Kaisei [Civil Procedure Law Reform and Securing the Effectiveness of Rights Enforcement] Jurisuto, 1317, 174-86 NISHIKAWA, S (2010 forthcoming) Saibankan Kanbu Jinji no Kenkyu [Studies of the Personnel Practices of Senior Judges], Tokyo, Gogatsu Shobo NOBUYOSHI, A (1988) The Role of Police in Japanese Society Law & Soc'y Rev, 22, 1033 NODA, Y (1976) Introduction to Japanese Law, Tokyo, Tokyo UP Page | 132 NOTTAGE, L., AND WADA YOSHITAKA (1998) Japan's New Product Liability ADR Centers: Bureaucratic, Industry, or Consumer Informalism? Zeitschrift fuer Japanisches Recht, 6, 40-81 NOTTAGE, L (2001) Japanese corporate governance at a crossroads: variation in 'varieties of capitalism' The North Carolina Journal of International Law & Commercial Regulation, 27, 255-299 NOTTAGE, L (2004a) Product Safety and Liability Law in Japan: From Minamata to Mad Cows, London, Routledge Curzon NOTTAGE, L (2004b) Japan's New Arbitration Law: Domestication Reinforcing Internationalisation? International Arbitration Law Review, 7, 54-60 NOTTAGE, L (2005a) Build Postgraduate Law Schools in Kyoto, and Will They Come - Sooner and Later? Australian Journal of Asian Law, 7, 241263 NOTTAGE, L (2005b) Civil Procedure Reforms in Japan: The Latest Round Ritsumeikan Law Review, 22, 81-86 NOTTAGE, L (2007) Changing Contract Lenses: Unexpected Supervening Events in English, New Zealand, U.S., Japanese, and International Sales Law and Practice Indiana Journal of Global Legal Studies, 14, 385-418 NOTTAGE, L., LEON WOLFE AND KENT ANDERSON (Ed.) (2008) Corporate Governance in the 21st Century: Japan’s Gradual Transformation, Cheltenham, Edward Elgar NOTTAGE, L & WADA, Y (1998) Japan's New Product Liability ADR Centers: Bureaucratic, Industry, or Consumer Informalism? ZJapanR, 6, 40 NOTTAGE, L & WOLLSCHLAEGER, C (1996) What courts do? New Zealand Law Journal, 1996, 369-373 ODA, H (2009) Japanese Law, Oxford, Oxford University Press OOMS, H (1996) Tokugawa Village Practice: Class, Status, Power, Law, Berkeley, University of California Press PEKKANEN, R (2006) Japan's dual civil society: members without advocates Stanford, Calif., Stanford University Press PUCHNIAK, D W (2008) Perverse rescue in the lost decade: Main banks in the post-bubble era IN NOTTAGE, L., WOLFF, L & ANDERSON, K (Eds.) Corporate governance in the 21st century: Japan's gradual transformation Cheltenham, Edward Elgar PUCHNIAK, D W (2009) Delusions of Hostility: The Marginal Role of Hostile Takeovers in Japanese Corporate Governance Remains Unchanged Journal of Japanese Law, 28, 89-121 RAMSEYER, J M (2008) Predicting Court Outcomes through Political Preferences: The Japanese Supreme Court and the Chaos of 1993 Harvard Law and Economics Discussion Paper, 624, http://ssrn.com/abstract=1326548 RAMSEYER, J M & NAKAZATO, M (1998) Japanese Law: An Economic Approach, Chicago, University of Chicago Press Page | 133 RAMSEYER, J M & RASMUSEN, E (2003) Measuring Judicial Independence: The Political Economy of Judging in Japan, Chicago, University of Chicago Press RAMSEYER, J M & RASMUSEN, E (2007) The Case for Managed Judges: Learning from Japan after the Political Upheaval of 1993 University of Pennsylvania Law Review, http://ssrn.com/abstract=869757 SATO, Y (2001) Commercial dispute processing and Japan, The Hague ; New York, Kluwer Law International SCHMIDT, P (2002) Capital Punishment in Japan, Leiden, Brill SONOHARA (1997) Toward a Genuine Redress for an Unjust Past: The Nibutani Dam Case E LAW - Murdoch University Electronic Journal of Law, STOCKWIN, J A A (2008) Governing Japan: divided politics in a resurgent economy, Malden, Mass., Blackwell Pub SULLIVAN, T (2004) Police Experiences With Recording Custodial Interrogations, Illinois, Centre on Wrongful Convictions, Northwestern University SUPREME COURT OF JAPAN (2008) Saibansho Tokei [Court Statistics], Tokyo, Supreme Court of Japan SUPREME COURT OF JAPAN (2009) Justice in Japan, Tokyo, Supreme Court of Japan TAKAHASHI, H (2009) Career Judiciary, Judicial Reform and Practicing Attorneys Journal of Japanese Law, 27, 39-58 TANASE, T (2006) Global Markets and the Evolution of Law in China and Japan Michigan Journal of International Law, 27, 873 TANASE, T (2010) Law and the Community: A Critical Assessment of American Liberalism and Japanese Modernity, Cheltenham, Edward Elgar TANIGUCHI, Y 1997 The 1996 Code of Civil Procedure of Japan: A Procedure for the Coming Century? American Journal of Comparative Law, 45, 767-88 TANIGUCHI, Y (2005) Japan’s Recent Civil Procedure Reform: Its Seeming Success and Left Problems IN TROCKER, N & VARANO, V (Eds.) The Reforms of Civil Procedure in Comparative Perspective Torino, G Giappichelli Editore TANIGUCHI, Y (2007) The Changing Image of Japanese Practicing Attorneys (Bengoshi): Reflections and a Personal Memoir IN SCHEIBER, H (Ed.) Emerging Concepts of Rights in Japanese Law Berkeley, UC Berkeley - Robbins Collection TANIGUCHI, Y (2007) The Development of an Adversary System in Japanese Civil Procedure IN FOOTE, D (Ed.) Law in Japan: A Turning Point Seattle, University of Washington Press UGA, K (2007) Development of the Concepts of Transparency and Accountability in Japanese Administrative Law IN FOOTE, D (Ed.) Law in Japan: A Turning Point Seattle, University of Washington Press Page | 134 UKAWA, H (1997) Shiho Torihiki o Kangaeru Hanrei Jiho, 31-47 UPHAM, F (1987) Law and Social Change in Postwar Japan, Cambridge, Mass, Harvard University Press UPHAM, F (2005) Political Lackeys or Faithful Public Servants? Two Views of the Japanese Judiciary Law and Social Inquiry, 30, 421-55 VANOVERBEKE, D & MAESSCHALK, J (2009) A Public Policy Perspective on Judicial Reform in Japan Journal of Japanese Law, 27, 11-38 VON MEHREN, A (Ed.) (1963) Law in Japan: The Legal Order in a Changing Society, Cambridge, Mass, Harvard University Press WEST, M D (2005) Law in everyday Japan: sex, sumo, suicide, and statutes, Chicago, University of Chicago Press WEST, M D (2007) Making Lawyers (and Gangsters) in Japan Vanderbilt Law Review, 60, 439-453 WILSON, J (1989) Bureaucracy: What Government Agencies Do and Why They Do It, New York, Basic Books WOLFF, L (2008) The Death of Lifelong Employment in Japan? IN NOTTAGE, L., WOLFF, L & ANDERSON, K (Eds.) Corporate governance in the 21st century: Japan's gradual transformation Cheltenham, Edward Elgar YAMADA, A (2009) A.D.R in Japan: Does the New Law Liberalize A.D.R from Historical Shackles or Legalize It? Contemporary Asia Arbitration Journal, 2, 1-23 YANAGIDA, Y., DANIEL FOOTE, EDWARD JOHNSON, MARK RAMSEYER, AND HUGH SCOGIN (Ed.) (2001) Law and Investment in Japan: Cases and Materials, Cambridge, Mass, Harvard University Press ZIMRING, F., JEFFREY FAGAN, AND DAVID JOHNSON (2009) Executions, Deterrence, and Homicide: A Tale of Two Cities [Singapore and Hong Kong] Journal of Empirical Legal Studies Page | 135 Glossary bengoshi - lawyer bengoshi ho – Lawyers Law bengoshi ninkan ni kansuru kyogikai – Japan Federation of Bar Associations joint Conference on the Recruitment of Judges from Practicing Attorneys benrishi – patent attorney chokusetsu kyosei – mode of execution involving direct compulsion where if the obligation to be enforced is to pay money or to surrender specific property, the execution authority sells the debtor’s property to obtain the money or takes the property from the debtor and turns it over to the creditor (cf kansetsu kyosei) chosho – written documents chotei-kan – a lawyer who has been appointed as a part-time judicial officer empowered to conduct civil or domestic relations conciliation procedures with the same level of competence as a judge daitai shikko - obligation which can be performed by a person other than the debtor him/herself may be enforced through execution by substitute dori – supplementary moral principles as applied in pre-Modern laws and judicial decisions cf jori genbatsuka - larger trend toward increasingly severe punishments in Japanese criminal justice, illustrated by the recent increase in the number of executions gyosei shoshi – administrative scrivener hakengata kenshu – short term study tours henmen chusai – one-sided arbitration (where only one party is bound by the award/decision) Page | 136 hikiwatashi meirei - transfer orders himawari law office – public law offices which receive financial assistance from local bar associations and the Japan Federation of Bar Associations on condition that they provide a certain level of public services in the form of court-appointed defence attorneys and providing legal aid in civil cases hira kenji - low-rank prosecutor (“operator”) hosei kyoku - House of Representatives’ Legal Affairs Division hoso seido – legal profession (usually in its narrow sense – see hoso or hoso sansha) hosei shingikai - Legal System Deliberative Council hoso – see hoso sansha hoso ichigen – unification of the legal profession (see hoso sansha) hoso sansha – judiciary (especially those who have passed the National Legal Examination), public prosecutors and lawyers, comprising the three key stakeholders traditionally in the legal profession (a term borrowed from Chinese) ho terasu – colloquial reference to Japan Legal Support Centre hozen shobun - preservation measures jimukan – administrative official jimu sokyoku - General judicial administration Secretariat of Supreme Court responsible for jitsumu kyougikai – Conference on Legal Practice ran by the Supreme Court to encourage unified practices among lower courts dealing with pressing socio-legal issues jiyu to seigi – Liberty and Justice (monthly journal published by the Japan Federation of Bar Associations) Page | 137 jokoku appeal - appeal with the Supreme Court against the judgment of the court of second instance as a final appeal jori – sound reason, recognised in 1875 as a source of modern Japanese law (cf dori), but increasingly marginal in practice joshi – higher-level prosecutor (“manager”) jiwtsujo – actual circumstances juku – cram school jusen - housing-loan corporation kaji shimpan ho – Domestic Relations Adjudication Law kanbu - executive kankai - Commended preliminaire settlement modeled on the French conciliation kansa - audit kansetsu kyosei – the mode of execution involving indirect compulsion where if the nature of the obligation is such that it does not permit performance by a third party, an indirect form of personal compulsion is used; the court may award damages to be paid by the debtor unless and/or until he/she performs (cf chokusetsu kyosei) kanteinin – expert witness kari sashiosae - provisional seizure under the Civil Provisional Measures Law kari shobun - provisional dispositions or temporary measures under the Civil Provisional Measures Law kari toki – provisional registration of immovable property Page | 138 keidanren – Japan Federation of Economic Organisations (now see Nippon Keidanren) keiji bengo – criminal law practice(cf minji bengo) keiji saiban – criminal litigation (cf minji saiban) keiretsu - conglomeration of and/or supply-chain ties, etc businesses linked by cross-shareholdings kensatsu – prosecutor or prosecutorial examination kentokai – Expert Advisory Committee kessai – literally ‘approval’, in reference to the system of consultation between prosecutors and their superiors about case dispositions kettei – judicial orders (in contrast to judgments = hanketsu, with usually stricter requirements and more extensive legal consequences) kisozen no wakai - pre-commencement compromises, a type of title of debt koban – neighbourhood police box or small office kokoku appeal – appeal against execution order kokyosei no kukan – space of the public good kosei shosho - executions on deeds notarised by a public notary koshonin – public notary koso appeal – appeal from judgment at first instance (cf jokoku appeal) kyobai ya – colloquial term referring to persons who interfere with auction processes in civil execution Page | 139 majime – serious (adj) minji bengo – civil law practice (cf keiji bengo) minji chotei ho – Civil Conciliation Law minji saiban – civil litigation (cf keiji saiban) minji shikko – civil execution naikaku hosei kyoku - Japan’s Cabinet Legislation Bureau naisai – settlement out of court (cf kankai) nichibenren – Japan Federation of Bar Associations nikkeiren - Japan Federation of Employers' Associations nippon keidanren - Japan Business Federation (formerly Keidanren) omawari-san – A friendly term for police officer saiban bunya betsu kenkyuukai – Area Specific Legal Seminars organised by the Legal Research and Training Institute saiban-in - quasi-jury system saibansho jimukan – Court Officials saimu meigi – title of debt necessary for civil execution by a creditor seikyu igi no uttae - action to object to a claim seikyu no nindaku - admissions of claim, which is a type of title of debt seinen horitsu kyokai – Young Lawyers Association Page | 140 seisaku hisho – policy secretary senmon i'in – specialist lay advisor appointed by Courts under revised Code of Civil Procedure, to help in complex cases such as construction or IP disputes sen’yu-ya – illegal occupants who interfere with auction by obtaining a lease over the debtor’s property which they provisionally registered with a government agency shakumei-ken – judges’ right to ask for explanations or clarifications, from lawyers or parties, as to law and fact at issue in civil litigation shiharai tokusoku - the payment demand note, which is a type of title of debt shiho kaikaku sokushin honbu Reform in the Cabinet Office – Headquarters to Promote Justice System shiho seido kaikaku no iken – A report entitled “Opinions on the Reform of the Judicial System” adopted by the Keidanren shiho shiken – National Legal Examination shikkobun – execution clause for civil execution shikkobun fuyo kyozetsu ni taisuru igi - objection to the refusal to issue an execution clause shikkokan – Court enforcement officer (bailiff) shikkokan ho – Bailiffs Law shikko kokoku – appeal against execution order by aggrieved party shikko igi – execution-objection in the court of execution to challenge the disposition of the execution shikko saibansho – court of execution Page | 141 shikko seihon – enforceable exemplification – i.e an instrument of title of debt accompanied by the execution clause shikko shosho - notarial deed serving as a title of debt shingikai – deliberative council (for law reform) shinjin – informal examination shinpankan – patent examiner shinshiho shiken – New National Legal Examination shiho shoshi – judicial scrivener shobun kessai – system where in order to charge persons and make sentencing recommendations, low-level operators must consult with and obtain the approval of two or three managers, depending on the seriousness of the case shokikan – court clerk shokumu donyu kenshu – induction courses on professional legal duties ran by the Supreme Court through the Legal Research and Training Institute shomu kenji – public prosecutor for civil, constitutional and administrative litigation cases involving the central government (including many judges seconded from the Supreme Court) shori kyukei kijunshu – Guideline for Prosecution Standards shufuren – Housewives Association sogo bunya kenkyukai – Seminars concerning areas of failure practice organised by the Legal Research and Training Institute sosho-jo no wakai – settlement during civil litigation Page | 142 in legal toban bengoshi – duty attorney (part of a system to provide additional legal services for suspects) tokusoku cases – demand for payment cases tokutei chotei ho – Specific Conciliation Law wakai - settlement agreements during the proceedings, which is a type of title of debt wakai ken benron – the combining of settlement negotiations, which can occur privately with the judges, and the open-court preliminary procedure, which is aimed at narrowing the issues for the oral hearing phase of a trial This procedure was used by courts prior to the enactment of the Code of Civil Procedure in 1996 wakai ni kawaru kettei – order in lieu of settlement wayo - compromise yakuza – member of the Japanese mafia yameken – term referring to prosecutors who have quit their office (usually then becoming lawyers) yoken jujitsu ron – theory to determine the factual premises on which a claim depends yokin hoken kiko – Social Insurance Agency zaibatsu - literally plutocrats or financial clique, a term referring to industrial and financial business conglomerates in Japan, often familybased, whose influence and size allowed for control over significant parts of the Japanese economy from the Meiji period until the end of World War II (especially from the 1930s) zeirishi – tax attorney Page | 143 ... the principle of the respect for individuals which is the most basic principle of the Constitution When likened to the human body, if the political branches constitute heart and arteries, the... Constitution established the judiciary as one of the branches of the tripartite separation of powers, or the system of checks and balances, along with the Diet and the Cabinet To ensure that the... When there is a need to expand and strengthen both the scale and the function of the veins, as described above, it must be emphasised that the need to reinforce and strengthen the judicial-check