- Law of Japan
The early law of Japan was heavily influenced by Chinese law. Little is known about Japanese law prior to the seventh century, when the Ritsuryō was developed and codified. Before Chinese characters were transplanted and adopted by the Japanese, the Japanese had no alphabet of their own with which to record their history. Chinese characters were known to the Japanese in earlier centuries, but the process of assimilation of these characters into their indigenous language system took place in the third century. This was due to the eagerness of the Japanese to transplant the culture of advanced continental civilisations, which was achieved mainly via adjacent countries such as the Korean Peninsular rather than directly from the Chinese mainland.
Two of the greatest systems of human philosophy and religion, Confucianism and Buddhism, were officially transplanted in 284–5 and 522 AD respectively, and became deeply acculturated into indigenous Japanese thought and ethics. David and Zweigert and Kotz argue that the old Chinese doctrines of Confucius, which emphasize social/group/community harmony rather than individual interests, have been very influential in the Japanese society, with the consequence that individuals tend to avoid litigation in favour of compromise and conciliation. In addition, various advanced arts and techniques in every field of production, such as agriculture, weaving, pottery-making, building construction, medicine and tanning, were brought to Japan by immigrants from the peninsular. The sweeping influence of these immigrants is evidenced by the many names of Chinese origin still existing in family names（For instance, the origin of the Hata(秦) clan who introduced the weaving to Japan is Qin(秦) Dynasty of China. place names and names of Shinto shrines in the western half of Japan.
The massive flow of immigrants was accelerated by both internal and external circumstances. The external factors were the continuing political instability and turmoil in Korea, as well as the struggle for central hegemony amongst the Chinese dynasties and kingdoms. These disturbances produced a large number of refugees who were exiled or forced to escape from their own countries. Immigrants to Japan included the privileged classes, such as experienced officials and excellent technicians. Many of them were hired in the Japanese court, and were included in the official rank system which had been introduced by the immigrants themselves. It is possible that many other legal institutions were also introduced, although partially rather than systematically, and this was probably the first transplantation of foreign law to Japan.
During these periods, Japanese law was unwritten and immature, and thus was far from comprising any official legal system. Nonetheless, Japanese society could not have functioned without some sort of law, however unofficial. The law regulating people's social lives can be found in contemporary general descriptions in Chinese historical books. The most noted of these is The Record on the Men of Wa, which was found in the Wei History, describing the Japanese state called Yamatai (or Yamato) ruled by the Queen Himiko in the second and third centuries. According to this account, Japanese indigenous law was based on the clan system, with each clan forming a collective unit of Japanese society. A clan comprised extended families and was controlled by its chief, who protected the rights of the members and enforced their duties with occasional punishments for crimes. The law of the court organised the clan chiefs into an effective power structure, in order to control the whole of society through the clan system. The form of these laws is not clearly known, but they may be characterised as indigenous and unofficial, as official power can rarely be identified.
In this period, a more powerful polity and a more developed legal system than the unofficial clan law of the struggling clan chiefs was required effectively to govern the society as a whole. Yamatai must have been the first central government which succeeded in securing the required power through the leadership of Queen Himiko, who was reputed to be a shaman. This leads to the assertion that Yamatai had its own primitive system of law, perhaps court law, which enabled it to maintain government over competing clan laws. As a result, the whole legal system formed a primitive legal pluralism of court law and clan law. It can also be asserted that this whole legal system was ideologically founded on the indigenous postulate which adhered to the shamanistic religio-political belief in polytheistic gods and which was called kami and later developed into Shintoism.Masaji Chiba, "Japan" Poh-Ling Tan, (ed), Asian Legal Systems, Butterworths, London, 1997 at 91.
Two qualifications can be added to these assertions. First, some Korean law must have been transplanted, albeit unsystematically; this can be seen by the rank system in court law and the local customs among settled immigrants. Second, official law was not clearly distinguished from unofficial law; this was due to the lack of written formalities, although court law was gradually emerging into a formal state law as far as central government was concerned. For these reasons, it cannot be denied that a primitive legal pluralism had developed based on court and clan law, partially with Korean law and overwhelmingly with indigenous law. These traits of legal pluralism, however primitive, were the prototype of the Japanese legal system which developed in later periods into more organised legal pluralisms.
Modern Developments and Japanese Law Today
The early modernization of the Japanese law was primarily based on continental European legal systems and lesser Anglo-American elements. At the beginning of the Meiji Era, European legal systems—especially the civil law of Germany and France—were the primary models for the Japanese judicial and legal systems.
After the Second World War, the Japanese legal system underwent major reform under the guidance and direction of Occupation authorities. American law was the strongest influence, at times replacing and at times overlaid onto existing rules and structures. The Constitution, criminal procedure law, and labor law, all crucial for the protection of human rights, and corporate law were substantially revised.
Therefore, the Japanese legal system today is essentially a hybrid of continental and Anglo-American legal structures, with strong underlying "flavors" from indigenous Japanese and Chinese characteristics. While historical aspects remain active in the present, Japanese law also represents a dynamic system that has undergone major reforms and changes in the past two decades as well.
Sources of law
The present nation and its legal system are constituted by the Constitution of Japan, adopted in 1946 after the Second World War.The Japanese Constitution contains thirty-one articles relating to human rights and it provides for the separation of three powers: Legislative, Judicial and Executive power.
In Japan, there are two parliaments: the Upper diet (Sangi-In) and lower diet (Shuugi-In). The Japanese court system is simple because it is not a federal system. There is one Supreme Court, eight high courts and fifty district and family courts. For small crimes (punishable by a fine or lighter punishment) and civil suits (involving claims not exceeding 900,000 yen), 448 summary courts have jurisdiction. Statutory law originates in Japan's legislature, the National Diet of Japan, with the approval of the Emperor as a formality. Under the current constitution, the Emperor does not have the power to veto or otherwise refuse to approve a law passed by the Diet.
The Modern Japanese Legal System's Six Codes
The modernisation of Japanese law by transplanting law from Western countries began after the Meiji Restoration in 1868, in which the Japanese Emperor was restored to political power.
The first major legislation enacted in Japan was the Criminal Code of 1880, followed by the Constitution of the Empire of Japan in 1889, the Commercial Code, Criminal Procedure Act and Civil Procedure Act in 1890 and the Civil Code in 1896 and 1898. These were called the roppo (six codes) and the term began to be used to mean the whole of Japan's statute law. The roppo thus included administrative law of both central and local government and international law in the treaties and agreements of the new government under the emperor (in addition to former agreements with the United States and other countries, which had been entered into by the Tokugawa Bakufu).
The six codes are now:
- The Civil Code (民法 Minpō, 1896)
- The Commercial Code (商法 Shōhō, 1899)
- The Criminal Code (刑法 Keihō, 1907)
- The Constitution of Japan (日本国憲法 Nippon-koku-kenpō, 1946)
- The Code of Criminal Procedure (刑事訴訟法 Keiji-soshō-hō, 1948)
- The Code of Civil Procedure (民事訴訟法 Minji-soshō-hō, 1996)
Japan, as with other leading Asian economies such as Taiwan and Thailand, has retained its Commercial Code, but has chosen to enact numerous special laws as well as to amend the Code. Japanese commercial law is also characterised by a relationship with the bureaucracy that is important in determining how those engaged in commerce conduct business.
In the civil law system of Japan, judicial precedent provides non-binding guidance on how laws should be interpreted in practice. Judges seriously consider precedent, especially any pertinent Supreme Court decisions, thus making understanding of precedent essential to practice.
The Civil Code of Japan (民法 Minpō, 1896) was created in 1896. It was heavily influenced by the first draft of the German Civil Code and the French Civil Code and emphasized law and order over individual freedom. The code is divided into five books. Those on family and succession retain certain vestiges of the old patriarchal family system that was the basis of Japanese feudalism. It was in these sections that most of the postwar revisions were made. At that time it was considered no longer necessary or desirable to pay such homage to the past, and the sections dealing with family law and succession were brought closer to European civil law. It has had a significant role in the development of civil law in several East Asian nations including the Republic of Korea and the Republic of China(Taiwan). It remained substantially unchanged even after the American occupation in 1945 except for the fifth (family law) and sixth sections (inheritance law) which were fully revised during the occupation.
Japanese contract law is based mostly on the Civil Code, which defines the rights and obligations of the parties in general and in certain types of contract. Kawashima writes that Civil Code theory requires the contractor to "complete the work" of construction at the agreed price, and that until then the contractor bears the risk of all expenses. But he notes that pre-war public works contracts had stipulated a possible shifting of a burden from the contractor to the owner of the works in the event of an act of God, albeit at the discretion of the owner. Kawashima does not spell out that the contractor will be excused from contractual liability by an act of God under Art 415 of the Code, and the novice needs the guiding hand of academic theory to readily draw that implication from the words of the provision. Nor does he spell out that the owner is relieved from making payments under art 536(1)—a rule that extends to all "bilateral" contracts, including the contract for work (ukeoi keiyaku). A reader must then know that the contractual stipulation allowing the discretion to vary the effect of those Code provisions, so that the owner may share some of the loss, is acceptable because those provisions are classified by theorists as "optional rules" (nin-I hoki).
The "relational contract theory" developed by Uchida from the start of the 1990s identifies the perceived gap between contemporary social practices and the legal values of "classical" (kotenteki) contract law in Japan. Uchida further argues that the Japanese legal system now reveals communitarian values that deviate from the "modern" (kindaiteki) paradigm of values of individualism and freedom, but which should now be seen as normatively appealing.
Uchida's latest restatement of his theory begins by arguing that contemporary contract law faces problems at two distinct levels: that of contract practice or social reality (standard-form contracts, new "types" of contracts, etc.), and that of contract norms (particularly in the caselaw). Following Dworkin very closely (while admitting that this particular philosophy of law may be open to challenge), Uchida assumes that the law retains "integrity" (seigosei) at the level of contract law principles. He then extends six duties emerging through the caselaw on Art 1(2) of the Civil Code, the "principle of good faith" (shingi seijitsu no gensoku): damages for breaking off contractual negotiations, duty to disclose information, duty to renegotiate, duty to mitigate, duty not to terminate contractual relations without good cause, and adjustment in awards of damages. These are seen as expressing an underlying "principle of continuity" in contractual relations that is incompatible with classical or modern contract law.
In 1990, the Law and Society Review published an article by Takao Tanase titled "The Management of Disputes: Automobile Accident Compensation in Japan." It posited that the calculated structuring of governmental and legal processes, not a cultural propensity toward harmonious social relations, accounted for the persistently low litigation rate in that country.
In Japan in 1986, Tanase observed, fewer than one percent of automobile accidents involving death or an injury resulted in Tort litigation. In the United States, the comparable figure was 21.5 percent. The disparity did not reflect passivity on the part of Japanese accident victims. They commonly made claims based on tort law and they received compensation from negligent drivers and their insurance companies. The litigation rate was low, Tanase said, because Japan provides non-litigious methods of assessing fault, advising victims of their legal rights, determining the appropriate level of compensation, and ensuring payment.
Tanase described how, before a court case is filed in Japan, contested claims generally are resolved by non-litigious dispute resolution mechanisms. These include Traffic Accident Dispute Resolution Centers, which along with courts, provide mediation services. Claimants can also turn to a network of consultation centers operated by governments, the bar association, and insurance companies. The mediation services and advice centers work effectively because the Japanese judiciary works hard at developing clear, detailed rules that guarantee virtually automatic, predictable, moderate compensation for most accident victims. This contrasts with the American tort system, where the legal rules concerning both liability and non-economic damages ("pain and suffering") are stated in general terms, leaving a great deal to the judgment of constantly rotating lay juries—which in turn makes courtroom outcomes variable and difficult to predict.
Tanase's article noted that Japanese insurance companies, compared to their American counterparts, have much lower incentives to avoid full legal compensation. This is because the Ministry of Finance regulates insurance firms' rates, guaranteeing a reasonable return, and also established compulsory loss-sharing arrangements among motor vehicle insurers. This made the insurance system more like a quasi-public social insurance program, Tanase argued, guaranteeing moderate benefits for the injured.
The result was a system that is vastly more efficient and reliable in delivering compensation than the American tort system. Tanase estimated that legal fees comprised only two percent of the total compensation paid to injured persons and that mediating and claims process costs amounted to about 0.2 percent of the total. In the United States, according to a survey in the late 1980s, 24 percent of individuals hurt in motor vehicle accidents involving potential defendants hired a lawyer, and the figure went up to 57 percent for victims with "serious injuries" (fractures, burns, or worse). When the claimant hires a lawyer, the defendant or her insurance company generally employ a lawyer too. In consequence, according to two big studies of motor vehicle accident tort claims (not just lawsuits), payments to lawyers equalled 47 percent of the total personal injury benefits paid by liability insurers to third-party accident victims. This expense drives up the cost of insurance to the point that huge numbers of drivers are uninsured or underinsured, which means that victims of their negligent driving will get little or nothing from the tort system.
All this makes Japanese bureaucratic legalism look very attractive from a comparative standpoint. But Tanase's 1990 article, foreshadowing his more recent scholarship, questioned whether a legal system that emphasizes bureaucratic smoothness and efficiency, rather than the pursuit of justice and responsiveness to changing values, is all a society should aspire to. The Japanese system, he pointed out, enabled especially aggressive claimants to obtain disproportionately higher compensation. And he feared that the low litigation rate and the emphasis on standardization would result in the stagnation of legal development, since courts were not constantly pushed to consider new arguments and improve the law. Thus, Tanase concluded, "Paradoxically, the very success of the Japanese elite in disarming the legal weaponry of the people inadvertently breeds the seed for its failure: the loss of legitimacy."
Tanase elaborates on these themes in "The Moral Foundations of Tort Liability," in which he adds an additional threat to the legitimacy of this system. People, he argues, want not only compensation for serious injuries caused by the negligence of others. Just as importantly, they yearn for a more humane, "communitarian" response, "whereby tortfeasors face up to victims and reflect on how they may ease the victims' pain and suffering." Yet one might wonder whether Tanase's concerns, while normatively appealing, were and remain somewhat exaggerated.
Like several other civil law states, Japan places a great emphasis on the rights of the tenant, and landlords are generally not allowed to unilaterally terminate leases without "just cause", a very narrowly construed concept. Many landlords are forced to "buy out" their tenants if they wish to demolish buildings to make way for new development: one well-known contemporary instance is the Roppongi Hills complex, which offered several previous tenants special deals on apartments.
Despite this emphasis on tenant rights, the government exercises a formidable eminent domain power and can expropriate land for any public purpose as long as reasonable compensation is afforded. This power was famously used in the wake of World War II to dismantle the estates of the defunct peerage system and sell their land to farmers at very cheap rates (one historical reason for agriculture's support of LDP governments). Narita International Airport is another well-known example of eminent domain power in Japan.
Japan's current corporate law is based upon the Commercial Code as amended through December 30, 2005. Shareholder liability rules generally follow American example. Under Japanese law the basic types of companies are:
- Limited liability partnerships (yūgen sekinin jigyō kumiai)
- Kabushiki kaisha (K.K.), similar to an Anglo-American corporation
- Godo kaisha (GDK), similar to an American limited liability company
- Gōmei kaisha (GMK), similar to an Anglo-American general partnership
- Gōshi kaisha (GSK), similar to an Anglo-American limited partnership
Japanese criminal sentencing, 1994 Murder
7–10 years in prison
3 years at hard labor
3–5 years in prison
5–7 years in prison
1–2 years at hard labor
6–12 months at hard labor
6–12 months in prison
1–2 years in prison
1–2 years at hard labor
1–2 years in prison
2–3 years in prison
History of the Criminal Justice System.
Before the Meiji Era (1867–1912), the powers of imperial family members, or the judges they appointed, possessed a large amount of discretion, which often resulted in the abuse of power. Capital punishment was the main measure of dealing with offenders in the criminal justice system. Under feudalism, authorities frequently used the death penalty against political rivals. However, after the Meiji Era, as Western culture was introduced, the government established new laws reflecting a gradually modernizing Japanese society. In 1907, criminal law and prison law were passed in an effort to bring Japan into line with Western countries. However, the rights of offenders did not become a main issue in the criminal justice system until the post-war period.
Based on the new Constitution, Criminal Procedure Law was radically changed toward the adoption of an adversarial system. Under this system, the roles of the police, the prosecutor, and the judge changed. Unfortunately, immediately following this innovation, a series of cases resulted in a miscarriage of justice partly because the police were not accustomed to the new system.
Although a jury system came into force in 1939, it was practically never used because of inflexibility in the ongoing criminal justice system at that time. In addition, professional judges have always enjoyed a high level of trust in Japanese society. After the war, the police began to carry guns instead of sabers, according to the advice of the United States.
Arguments were frequently made for reforming the main laws such as the Criminal Law (1907), the Juvenile Law (1947) and the Prisons Law (1907). However, plans for reform were controversial because they addressed delicate issues, such as the introduction of protective measures to Criminal Law, juvenile punishment, or the abolition of the practice of imprisoning defendants in police cells. Japanese society is relatively conservative in its approach to reforms and is generally inclined to oppose them. The government attempts to reform older laws by issuing a series of supplements.
1. Classification of Crime.
- Legal classification. The three main categories of crime under the Japanese Criminal Law are crimes against the state, crimes against society and crimes against individuals. This law was passed under the old Constitution which had mainly focused on the power of the emperor and the state. As a result, crimes against the imperial family and the state were highly emphasized. While crimes against the imperial family were abolished after World War II, the fundamental structure of this law was little changed. Since there has been no complete revision of the law, the law remains fairly antiquated on the surface.
The criminal justice system reflects the state's task of protecting individual interests in daily life. Crimes against life, person, and freedom include homicide, assault, bodily injury, forcible rape, indecent assault, and kidnapping. Crimes against property include theft, fraud, robbery, extortion, and embezzlement. The concept of theft has a very broad meaning and includes burglary, shoplifting, and stealing the goods in a car. Stealing bicycles from in front of railway stations is a typical theft according to criminal statistics. Crimes which significantly cause social disorder, like arson, indecent behavior in the public, and gambling, are usually placed in a category of crimes against society. Bribery is considered a crime against the state.
- Special laws. Includes firearms and sword control law, laws for regulating business that affects public morals, anti-prostitution laws, anti-organized crime laws, and road traffic laws. There are a large number of traffic offenses, indicating serious problems on roads in Japan. Annually, there are 11,000 deaths caused by traffic accidents. After a controversy involving citizen's freedom of association in 1992, an anti-organized crime law was passed which regulated the activity of Boryokudan crime organizations.
- Age of criminal responsibility. Persons younger than 20 years of age are legally considered juveniles. According to the Juvenile Law, juvenile cases go to Family court. The court subsequently determines the need to subject the juvenile concerned to protective measures and the most beneficial treatment for the juvenile. Possible measures include placement under the supervision of probation officers, commitment to a child education or training home or a house for dependent children, and commitment to a juvenile training school. The Juvenile Law states that juvenile cases should be in principle separated from adult cases in terms of their future development. Although there are exceptions, juveniles are criminally prosecuted when the case involves a certain punishment in response to a very serious offense.
- Drug offenses. There are special laws regulating cannabis, narcotics and psychotropics, stimulants and opium. Drug regulations cover punishment for the use, trade, possession, and production of drugs. In the 1990s a new drug regulation was introduced to conform to the standards of the United Nations. Toluene, thinner, and bonding substances are regulated by special law as well. Their abuse is a serious problem among the youth, partly because of their cheap price. Drug abuse in Japanese society largely stems from the use of amphetamine, which is largely imported from other Asian countries. Organized crime is involved in the handling and production of amphetamines and has become rich from this activity.
2. Crime statistics.
Police, prosecution, court, correction and after-care divisions each publish their own statistics as a yearbook. The Ministry of Justice summarizes their statistics and publishes a book, White Paper on Crime. Because of the nationwide unitary system of these agencies, such a complete portrayal of the crime situation in Japan is possible. The number of reported crimes which follows is derived from the summary of the White Paper on Crime, for 1990.
- Murder. In 1990, there were 1,238 cases of homicide reported to the police.
- Rape. In 1990, there were 1,548 cases of rape reported to the police.
- Larceny. In 1990, there were 1,444,067 cases of larceny reported to the police.
Intellectual property law
See: Family law in Japan
The individual relationship between employer and employee:
Basics of the Japanese employment law are established in the Japanese Constitution, which was framed in large part with an eye toward the U.S. Constitution. As such, employment laws in Japan are very similar to those in the U.S., and can be divided into three general categories: labor standards, labor relations, and trade unions. The 'employment' or 'service' contract is recognised under Article 623 of the Japanese Civil Code. While the term 'labour contract' is not defined under the Labour Standards Law (LSL), to all intents and purposes the courts regard the two as one and the same, and the terms 'labour contract’ and 'employment contract' as interchangeable. It is through the civil procedure, therefore, that the boundaries of the individual contract have largely been defined by means of a comprehensive body of case law.
Most terms and conditions of employment are provided by the company's work rules, which may be drawn up and varied unilaterally."Japan", Y. Matsuda, S. J. Deery & R. J. Mitchell (ed), Labour Law & Industrial Relations in Asia, 1993, Longman Cheshire: Sydney, at 175. However, under the LSL, an employer of more than ten persons is required to draw up a set of rules specifying certain conditions of work, including hours, rates of pay, promotion, retirement and dismissal (LSL art. 89). About 42 per cent of the private sector workforce is employed in firms with fewer than ten employees. Consequently, these employers are exempt from the legal obligation to provide formal work rules in respect of their employees. The LSL also requires the employer to consult with the union, if any, or with a person who represents a majority of the employees in drafting the work rules (LSL art. 89). A copy of the work rules must also be submitted to the Labour Standards Office (LSL art. 90).
Under the Japanese Constitution, citizens are guaranteed the right to maintain the minimum standards of a wholesome and cultured life (art. 25). These are to be maintained through the right to work (art. 27) and the right to property (art. 29). The Constitution also guarantees certain work-related rights. Wages, hours and other working conditions must be fixed by law (art. 27).
Under the Industrial Safety and Health Law of 1972 (ISHL), employers bear the major responsibility for the prevention of occupational disease and accident through an integrated scheme of insurance and safety and health management. Furthermore, through the employment contract, employers owe a general duty to take care of their employees’ health and safety—and may be sued for damages for negligence in cases where breach of duty or violation of the statutory regulations has occurred.
The national level police organizations are the National Police Safety Commission (NPSC) and the National Police Agency (NPA). Since the NPSC makes basic policy and the NPA administers police affairs, the NPSC has control over the NPA. The NPSC is a governmental body responsible mainly for the administrative supervision of the police and coordination of police administration. It also oversees matters relating to police education, communication, criminal identification, criminal statistics and police equipment. To ensure its independence and neutrality, not even the Prime Minister is empowered to direct and give orders to the NPSC.
The NPA, which is headed by a Director General, maintains Regional Police Bureaus as its local agencies throughout the country. There are seven bureaus in the major cities, excluding Tokyo and the northern island of Hokkaido. Police law stipulates that each prefectural government, which is a local entity, shall have its own Prefectural Police (PP). The PP is supervised by the Prefectural Public Safety Commission, which carries out all police duties within the boundaries of the prefecture. In practice, the PP forces are located in each of the 47 prefectures. The National Police Academy, the National Research Institute of Police Science and the Imperial Guard Headquarters are also organizations affiliated with the NPA. In addition, the Koban system provides local residents with safety and peace through daily contacts of police officers with residents in the area. Originally created by the Japanese police, this system has been recently adopted by countries such as Germany and Singapore. However, its success depends on the human relationship between the police officers and the community people. At times, there is an excess of intervention by police. The Koban system rests on approximately 15,000 police boxes (Hasshusho) and residential police boxes (Chuzaisho) located throughout the country.
- Expenditures. There are two types of police budgets: the national budget and the prefectural budget. The national police budget covers the expenditures of the NPA relevant to the execution of duties under its jurisdiction, including personnel costs, expenses incurred by the prefectural police which are shouldered by the state, and subsidies to the PP. Expenditures needed by the PP to carry out their duties are appropriated in the budget of each prefecture. In 1992, the NPA budget totalled 213,464 billion yen and the PP budget totalled 2,992,454 million yen (270 billion USD).
The total National Police Agency Budget for the 1990 fiscal year was 198,420 billion yen, of which 41.5% (82,282 billion yen) went toward personnel expenses, 14.5% (28,870 billion yen) went toward equipment, communications, and facilities, 18.2% (36,149 billion yen) were allocated toward other expenses, and 25.8% (51,119 billion yen) went toward subsidies for Prefectural Police. In all, 74.2% of the total (147,301 billion yen) went toward NPA expenses.
- Number of police. The NPA and the PP personnel forces are composed of police officers, officers of the Imperial Guard Headquarters, and civilian employees such as clerical workers and technical engineers. In 1990, there were about 258,800 authorized full-time police personnel. The ratio of police to population is about one officer to 556 citizens. The NPA is composed of approximately 7,600 personnel, of whom 1,200 are police officers, 900 are Imperial Guards and 5,500 are civilian personnel. The 47 PP forces have a total strength of approximately 250,000, of whom 220,000 are police officers and 30,000 are civilians. There are approximately 4,200 female police officers (1.6%), whose role has been growing in importance. In addition, there are about 14,000 female civilians, of whom about 3,100 are traffic control personnel and juvenile guidance personnel engaged in on-the-street juvenile control.
- Availability of police automobiles. Motor vehicles are assigned to all police boxes throughout the country. Because of their mobility, they are useful in handling emergency cases, investigating criminal activity, and enforcing traffic control. As of 1994, there are approximately 26,000 police motor vehicles, including 5,000 patrol cars, 3,000 traffic police motorcycles, 5,000 vehicles employed for criminal investigation and 2,500 transport vehicles. In addition, about 200 police boats and 60 helicopters are assigned to each jurisdiction.
- Electronic equipment. Network technology includes police telephone circuits, facsimile, an integrated system for police activities, a communication command system and mobile radio system, portable radio sets, a communication satellite, and multi-channel mobile telephone cars.
- Weapons. After World War II, the United States advised Japanese police to require individual police officers to carry guns, whereas they used to carry only sabers. However, few guns are actually used. One problem is that offenders may initially attack police in order to obtain guns.
Training and Qualifications
Recruited police officers must immediately attend a three-part training course, consisting of preservice, on-the-job, and a comprehensive training course. Those recruited by the PP are enrolled in a 1-year preservice training course at their respective police academies.
- Confessions. Admissions of testimony in court may not include confessions made under compulsion, torture or threat, or after prolonged detention or confinement. Conviction or punishment cannot be permitted where the only proof against the defendant is his or her own confession.
Japan recognizes a large number of legal professions, however the number of lawyers is significantly fewer than in the United States. This is due to the fact that Japanese law is based on the Continental European civil law system and a very small number of lawyers (advocates) are complemented by large numbers of civil law notaries and scriveners. Japan introduced a new legal training system in 2004 as part of a justice system reform. The justice system reform has been criticized for failing to incorporate a gender perspective. The purpose of this paper is to examine the impact of the new legal training system on gender issues. The major professions, each of which has a separate qualification process, include:
- Attorney at law (弁護士 bengoshi )
- Registered Attorney at foreign law (外国法事務弁護士 gaikokuhō jimu bengoshi , or "gaiben")
- Notary public (公証人 kōshōnin )
- Administrative scrivener (行政書士 gyōsei shoshi )
- Judicial scrivener (司法書士 shihō shoshi )
- Certified public accountant (公認会計士 kōnin kaikeishi )
- Certified tax accountant (税理士 zeirishi )
- Patent attorney (弁理士 benrishi )
- Certified social insurance and labor consultant (社会保険労務士 shakai hoken rōmushi )
- Land and House Investigator (土地家屋調査士 tochikaokuchousashi )
In-house legal advisors at major corporations are almost entirely unregulated, although there has been a trend in the past decade towards attorneys moving in-house.
Courts and procedure
Japan's court system is divided into four basic tiers, 438 Summary Courts, one District Court in each prefecture, eight High Courts and the Supreme Court. There is also one Family Court tied to each District Court.
1. Rights of the accused.
- Rights of the accused. The Constitution is the source of individual rights in the setting of criminal investigations and trial. Article 31 declares, "No person shall be deprived of life or liberty, nor shall any other penalty be imposed, except according to procedure established by law," which is regarded as the principle of due process. Article 33 covers protection from illegal arrest: "no person shall be arrested except upon a warrant issued by a competent judicial official, which specifies the offense with which a person is charged...,". Article 34 protects persons from illegal confinement and Article 35 protects persons from illegal deprivation of residence and property.
Provisions directly governing trial proceedings provide that admissions of testimony must be compelling. There are also rights guaranteeing a speedy and public trial, full opportunity to examine all witnesses, and legal counsel by lawyers employed by the state if the accused cannot afford a private lawyer. In addition, a person cannot incur criminal liability if the act was lawful at the time it was committed, and cannot be subject to conviction for the same crime twice (double jeopardy).
- Assistance to the accused. The state must provide legal counsel if the defendant cannot afford a private lawyer.
- Preparatory procedures for bringing a suspect to trial. Procedure in criminal prosecutions is uniform throughout Japan, and based primarily on the 1948 Code of Criminal Procedure and the 1949 Rules of Criminal Procedure under the Constitutional Law, reflecting Anglo-American legal concepts in contexts important to the protection of human rights. When police investigation is completed, police must refer the matter, including the evidentiary data, immediately to a public prosecutor. If the matter involves confining a suspect, they must refer the case to the public prosecutor within 48 hours of the suspect's arrest after which a determination is made concerning pre-trial detention.
The jury system has, for all practical purposes, been suspended. There are no procedures equivalent to a guilty plea. That is, even if the defendant acknowledges guilt, the prosecutor must submit evidence to establish guilt. Further, since the Japanese procedural system does not include pre-sentence investigations and reports by probation officers, evidentiary data bearing on the sentencing must be presented by the parties to the case, to be supplemented by the court's own inquiries. In this context, the court is the exclusive trier of fact, which consists of the physical evidence and, when that is the case, the confession of the accused as well as any witnesses testimony.
- Official who conducts prosecution. Only prosecutors are empowered to institute the prosecution of a criminal case and to direct the enforcement of criminal sentences. They have a large amount of discretion in controlling and directing criminal cases. (Japanese Criminal Procedure Code, Art.248). Accordingly, they have the power to suspend prosecution even when they can prove the offender committed a crime. They can also investigate all categories of criminal cases on their own initiative, without assistance from the police and other law enforcement agencies. Special cases, such as bribery involving highly placed government officials or corporate crimes involving a breach of trust by executives are often investigated by prosecutors. The increasing frequency of the occurrence of these special cases have emphasized the importance of the prosecutor's investigative powers.
Under the Supreme Public Prosecution Office are 8 higher offices, 50 district offices and 810 local offices. As of 1990, there were about 1,100 prosecutors and 900 assistant public officers, who are all appointed by the central government.
- Proportion of prosecuted cases going to trial. Japan has a low rate of acquittals and high rate of convictions. In 1988, there were 57,790 accused persons tried in first-instance courts, of which only 50 (0.01%) were found not guilty. Defense lawyers generally prefer the introduction of mitigating circumstantial evidence rather than arguing with the prosecutor. In addition, both practicing lawyers and judges regard criminal cases as being less attractive than other types of cases.
- Pre-trial incarceration conditions. If the public prosecutor believes that continued detention of the accused is needed, he or she must apply to a judge for a warrant of detention. This warrant must be applied for within 24 hours after police transfer to the prosecutor, or a maximum of 72 hours from the time of arrest.
If reasonable grounds to detain a suspect exist, the judge must promptly issue a warrant or order of detention at a maximum of 10 days before prosecution is instituted. Reasonable grounds are determined by three criteria: 1) whether the suspect has a fixed dwelling, 2) whether the suspect might destroy evidence and; 3) whether he might flee the jurisdiction.
- International Family Law
- Sweden v. Yamaguchi (Lagerfeld v. Yamaguchi)
- English summaries of important family law related cases
- Teruki Tsunemoto, Trends in Japanese Constitutional Law Cases: Important Judicial Decisions for 2004, trans. Daryl Takeno, Asian-Pacific Law & Policy Journal
- Teruki Tsunemoto, Trends in Japanese Constitutional Law Cases: Important Legal Precedents for 2005, trans. John Donovan, Yuko Funaki, and Jennifer Shimada, Asian-Pacific Law & Policy Journal
- Teruki Tsunemoto, Trends in Japanese Constitutional Law Cases: Important Legal Precedents for 2006, trans. Asami Miyazawa and Angela Thompson, Asian-Pacific Law & Policy Journal
- Teruki Tsunemoto, Trends in Japanese Constitutional Law Cases: Important Legal Precedents for 2007, trans. Mark A. Levin and Jesse Smith, Asian-Pacific Law & Policy Journal
- Constitution of Japan
- Government of Japan
- Human rights in Japan
- Judicial System of Japan
- Juries in Japan
- Legal systems of the world
- Politics of Japan
- Meiji Constitution (superseded)
- Local Autonomy Law
- Peace Preservation Law (superseded)
- Railway Construction Act
- Railway Nationalization Act
- New (2006) Corporations Law
- ^ Malcolm D.Evans. International Law. p. 49. Oxford, 2003. ISBN 0-19-928270-6.
- ^ This may be shown by reference to some epochal events in Japanese relations with three Korean countries during this period: with Silla in 205 AD, Paekche in 247 AD and Kogryo, bordering upon North China, in 297 AD as cited by Masaji Chiba, Japan Poh-Ling Tan, (ed), Asian Legal Systems, Butterworths, London, 1997 at 89–90.
- ^ a b Masaji Chiba, Japan Poh-Ling Tan, (ed), Asian Legal Systems, Butterworths, London, 1997 at 90.
- ^ K Zweigert and H Kotz, Introduction to Comparative Law (2nd ed, Vol 1, Oxford, Clarendon press, 1987), pp. 361 and 370–371; R David and J E C Brierley, Major Legal Systems in the World Today, An Introduction to the Comparative Study of Law (2nd ed, London, Stevens and Sons, 1978), pp. 479 and 500.
- ^ However, Japanese legal and general historians have not overtly affirmed or denied this for two reasons: first, because there are no written records left and, second, because Japanese official history tended to devaluate, or even deny, and Korean influence, cited in Masaji Chiba, Japan Poh-Ling Tan, (ed), Asian Legal Systems, Butterworths, London, 1997 at 90.
- ^ a b c d e f g h i Masaji Chiba, Japan Poh-Ling Tan, (ed), Asian Legal Systems, Butterworths, London, 1997 at 91.
- ^ Translation of "kami" = gods in Shintoism, not only enshrined in Jinja (enshrinement of Shinto gods, worshiped by any group of small local fraternities, local communities or associated believers from different localities) but also deified as governing human affairs and natural occurrences, as cited by Masaji Chiba, "Japan" Poh-Ling Tan, (ed), Asian Legal Systems, Butterworths, London, 1997 at 118.
- ^ John Owen Haley, Authority Without Power: Law and the Japanese Paradox (Oxford, 1994), ISBN 0-19-509257-0
- ^ Alfred C. Oppler, Legal Reform in Occupied Japan: A Participant Looks Back (Princeton, 1976)
- ^ Levin, Mark, Continuities of Legal Consciousness: Professor John Haley's Writings On Twelve Hundred Years of Japanese Legal History (2009). Washington University Global Studies Law Review, Vol. 8, p. 317. Available at SSRN: http://ssrn.com/abstract=1551420.
- ^ id.; see generally, Daniel Foote ed. Law in Japan: A Turning Point (University of Washington Press, 2007), ISBN 0-29598-731-6.
- ^ a b M. Ibusuki, "Japanese Law via the Internet" 2005 http://www.nyulawglobal.org/Globalex/Japan.htm#_Basic_Structure_of_Japanese%20Legal%20S
- ^ Full text of the Japanese Constitution may be found online at http://www.japaneselawtranslation.go.jp/law/detail/?id=174&vm=02&re=02&new=1
- ^ a b c d Masaji Chiba Japan edited by Poh-Ling Tan, "Asian Legal Systems" Butterworths, London, 1997.
- ^ See Tanaka K, The Japanese Legal System: Introductory Cases and Materials, University of Tokyo Press, Tokyo, 1976, pp. 16–24 for the text. The Constitution gave the legal system its basic structure, composed of several modern legal essentials: that is, national sovereignty, fundamental human rights, separation of powers, a representative government and state-controlled finances.
- ^ The modern system of Japanese law, together with the process of the transplantation and its socio-cultural background, has been studied by many Western and Japanese scholars. Prominent are von Mehren A T, Law in Japan: The Legal Order in a Changing Society, Harvard University Press, Cambridge, Massachusetts, 1963; Takayanagi K, 'A Century of Innovation: The Development of Japanese Law, 1868–1961' in Law in Japan: The Legal Order in a Changing Society, von Mehren A T (ed), Harvard University Press, Cambridge, Massachusetts, 1963; Tanaka K, The Japanese Legal System: Introductory Cases and Materials, University of Tokyo Press, Tokyo, 1976; Oda H, Japanese Law, Buttworths, London 1992 in English, Murakami J, Einfurung in die Grundlagen des Japanischen Rechts, Wissenschaftliche Buchgesellschaft, Darmstadt, 1974; Igarashi K, Einfurung in das Japanische Recht, Wissenschaftliche Buchgedellschaft, Darmstadt, 1990; Conig et al, Die Japanisierung des Westlichen Rechts, J C B Moor, Tulbingen, 1990; Scholler H (ed), Die Enrwicklung der Rezeption westlichen Rechts auf die sozialen Verhältnisse in der fernöstlichen Rechtskultur, Nomos, Baden-Baden, 1993; Menkhaus H, Das Japanische in Japanischen Recht, Iudicium Verlag, München, 1994 in German; Scheer M K, Japanese Law in Western Languages 1974–1989: A Bibliography, Deutsch-Japanischen Juristenvereinigung, Hamburg, 1993 in both German and English; Centre Francais de Droite Comparé, Etudes de Droit Japonais, Société de Législation Comparé, Paris 1989; Maison du Japon, Boissonade et la Reception du Droit Francais au Japon, Société de Législation Comparé, Paris, 1991; Matsukawa T, La Familé et Droit au Japon, Economica, Paris 1991 in French.
- ^ E.g., the Commercial Code regulates partnership and the stock company, but the limited liability company is governed by the Limited Liability Company Act of 1938. The relevant Code provisions have been substantially amended as cited in V. Taylor (ed) Asian Laws Through Australian Eyes, 1997, LBC Information Services, Sydney at 38.
- ^ V. Taylor (ed) Asian Laws Through Australian Eyes, 1997, LBC Information Services, Sydney at 38.
- ^ T. Morishita Transparency of Japanese Law Project – Group for International Finance Law 2006–2009 Kyushu University http://www.tomeika.jur.kyushu-u.ac.jp/finance/
- ^ Encyclopaedia Britannica Online http://www.britannica.com/EBchecked/topic/301097/Japanese-Civil-Code
- ^ Encyclopedia Britannica. See in: http://www.britannica.com/EBchecked/topic/301097/Japanese-Civil-Code
- ^ T Kawashima (C Stephens, trans), The Legal Consciousness of Contract in Japan (1974) 7 Law in Japan 1 cited in V. Taylor (ed) Asian Laws Through Australian Eyes, 1997, LBC Information Services, Sydney at 321
- ^ Z Kitagawa (gen ed), op cit, s1.14 cited in V. Taylor (ed) Asian Laws Through Australian Eyes, 1997, LBC Information Services, Sydney at 321
- ^ Z Kitagawa (gen ed), op cit, s1.06 cited in V. Taylor (ed) Asian Laws Through Australian Eyes, 1997, LBC Information Services, Sydney at 321
- ^ Z Kitagawa (gen ed), op cit, s1.07(4)(a) cited in V. Taylor (ed) Asian Laws Through Australian Eyes, 1997, LBC Information Services, Sydney at 321.
- ^ In English, see T Uchida, "The New Development of Contract Law and General Clauses – A Japanese Perspective" in The Organizing Committee (ed), Proceedings of the Symposium: Japanese and Dutch Laws Compared (Tokyo, University of Tokyo Centre for Comparative Law and Politics Institute of Comparative Law, 1993), p. 119, cited in V. Taylor (ed) Asian Laws Through Australian Eyes, 1997, LBC Information Services, Sydney at 323.
- ^ T Uchida, Gendai keiyakuho no aratana riron no kenkyu (Research on a New Theory of Contemporary Contract Law) (1994) 65/5 Horitsu jiho 28. Most aspects of his theory were clearly signaled in T Uchida, Keiyaku no saisei (The Rebirth of Contract), (Tokyo, Kobundo, 1990), cited in V. Taylor (ed) Asian Laws Through Australian Eyes, 1997, LBC Information Services, Sydney at 323–4
- ^ R Dworkin, Law's Empire (Cambridge Mass, Harvard University Press, 1986), cited in V. Taylor (ed) Asian Laws Through Australian Eyes, 1997, LBC Information Services, Sydney at 324.
- ^ V. Taylor (ed) Asian Laws Through Australian Eyes, 1997, LBC Information Services, Sydney at 324. See further pp. 324–337.
- ^ R. Kagan On the Routinization of Tort Claims: Takao Tanase's "The Management of Disputes" This paper was presented at a Sho Sato Conference held on February 12–13, 2005 at Boalt Hall School of Law, University of California, Berkeley.
- ^ Original text at http://www.ron.gr.jp/law/law/syouhou1.htm
- ^ a b c d e f g h i j k l m n o p q r s t u v w x y z aa ab ac ad ae T. Moriyama, World Factbook of Criminal Justice Systems—Japan, Takushoku University, http://www.ojp.usdoj.gov/bjs/pub/ascii/wfbcjjap.txt
- ^ Curtis Seubert: Japanese Employment Laws.
- ^ Antnio Augusto Cancado Trinidade. International Law for Humankind. Boston, 2003. ISBN 978-9004-18428-2
- ^ "Japan", Y. Matsuda, S. J. Deery & R. J. Mitchell (ed), Labour Law & Industrial Relations in Asia, 1993, Longman Cheshire: Sydney, at 175.
- ^ "Japan", Y. Matsuda, S. J. Deery & R. J. Mitchell (ed), Labour Law & Industrial Relations in Asia, 1993, Longman Cheshire: Sydney, at 175.
- ^ Chalmers, N. (1989) Industrial Relations in Japan: The Peripheral Workforce, Routledge, London, at 102, cited in "Japan", Y. Matsuda, S. J. Deery & R. J. Mitchell (ed), Labour Law & Industrial Relations in Asia, 1993, Longman Cheshire: Sydney, at 175.
- ^ a b "Japan", Y. Matsuda, S. J. Deery & R. J. Mitchell (ed), Labour Law & Industrial Relations in Asia, 1993, Longman Cheshire: Sydney, at 175.
- ^ Self-Defence Force case, Sup. Ct., 3rd Small Bench, February 25, 1975, Minshu, vol. 29, no. 2, p. 143 as cited by Y. Matsuda, S. J. Deery & R. J. Mitchell (ed), Labour Law & Industrial Relations in Asia, 1993, Longman Cheshire: Sydney, at 177.
- ^ Osaka, Eri. "Gender Issues in the Legal Profession and Legal Education in Japan" Paper presented at the annual meeting of the The Law and Society Association, Hilton Bonaventure, Montreal, Quebec, Canada, May 27, 2008.
- Foote ed. Law in Japan: A Turning Point (University of Washington Press, 2007), ISBN 0-29598-731-6
- Port and McAlinn, Comparative Law: Law and the Legal Process in Japan (Carolina Academic Press, 2003), ISBN 0-89089-464-7
- Milhaupt et al., Japanese Law in Context: Readings in Society, the Economy, and Politics (Harvard, 2001), ISBN 0-674-00519-8
- Oda, Japanese Law (Oxford, 2001), ISBN 0-19-924810-9
- Ramseyer and Nakazato, Japanese Law: An Economic Approach (Chicago, 2000), ISBN 0-226-70385-1
- Oda, Basic Japanese Laws (Oxford, 1997), ISBN 0-19-825686-8
- Haley, Authority Without Power: Law and the Japanese Paradox (Oxford, 1994), ISBN 0-19-509257-0
- Francisco Barberán & Rafael Domingo Osle, Código civil japonés. Estudio preliminar, traducción y notas (2 ed. Thomson-Aranzadi, 2006), ISBN 978-84-9767-632-8.
- Japanese Law Translation by the Ministry of Justice (Japanese Law Translation Database System in English)
- Transparancy of Japanese Law Project (contains the overview and court cases in various areas)
- Supreme Court of Japan (about judicial system, judicial statistics, court procedure, court cases, judicial training system, etc.)
- Ministry of Justice (Civil Affairs Bureau, Criminal Affairs Bureau, Correction Bureau, Rehabilitation Bureau, Human Rights Bureau, Immigration Bureau, Public Prosecutors Office, etc. Also contains annual "White Paper on crime")
- Intellectual Property High Court
- Japan Patent Office
- Labor law (in English)—includes Worker Dispatch law
- Laws & Regulations on Setting Up Business in Japan: Human Resource Management (JETRO)
- Ono,Shusei "A Comparative Study of the Transfer of Property Rights in Japanese Civil Law(1)"
- Japanese Wikipedia article on "List of Japanese laws" (contains links to many key Japanese laws)
- Links on Japanese law
- Japanese Family Laws in English and Japanese
- Summaries of major court cases
- National Police Agency
- The Reluctant Japanese Litigant: A new assessment, discussion paper by Masayuki Yoshida in the electronic journal of contemporary japanese studies, 13 October 2003.
- The Australian Network for Japanese Law (ANJeL)
Law of Asia Sovereign
- Burma (Myanmar)
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- East Timor (Timor-Leste)
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- South Korea
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