Japanese law
|
|
Japanese law was historically heavily influenced by Chinese law, but has been largely based on the civil law of Germany since the late 19th century.
| Contents |
Statutory law
Laws originate in the Diet of Japan with the rubber-stamp approval of the Emperor. Under the current constitution, the Emperor may not veto or otherwise refuse to approve a law passed by Diet.
Six Codes
The main body of Japanese statutory law is a collection called the Six Codes (六法 roppô):
- the Civil Code of Japan (民法 Minpô, 1896) in five volumes (General Provisions, Rights, Claims, Families, and Inheritance)
- the Commercial Code of Japan (商法 Shôhô, 1899)
- the Criminal Code of Japan (刑法 Keihô, 1907)
- the Constitution of Japan (日本国憲法 Nippon-koku-kempô, 1946)
- the Criminal Procedure Code of Japan (刑事訴訟法 Keiji-soshô-hô, 1948)
- the Civil Procedure Code of Japan (民事訴訟法 Minji-soshô-hô, 1996)
Contemporary laws
Historical laws
Administrative law
Japanese government agencies have very limited regulatory power in the absence of Diet legislation. However, when dealing with businesses, they often issue "directions," "requests," "warnings," "encouragements," and "suggestions," with the implication that noncompliant parties will be obstructed by the agency in the future by receiving poorer quotas or less government aid. The Cold War-era Ministry of International Trade and Industry was especially well-known for this practice.
Contract law
Japanese contract law allows greater ambiguity than American contract law. A Japanese contract, for instance, does not require clear statements of offer, acceptance, or consideration: most simply begin with a declaration, e.g. "Company X and Company Y hereby enter into the following agreement." Contracts also tend to contain very little detail, with the parties working out complications as they arise.
Criminal law
| Murder (514) | 7 - 10 years in prison 3 years at hard labor 3 - 5 years in prison 5 - 7 years in prison Other sentences | 103 (20%) 96 (19%) 94 (18%) 88 (17%) 133 (26%) |
| Assault (10,920) | ¥100-200,000 fine ¥200-300,000 fine ¥300-500,000 fine 1 - 2 years at hard labor 6 - 12 months at hard labor 6 - 12 months in prison 1 - 2 years in prison Other sentences | 4130 (38%) 2084 (19%) 1161 (11%) 857 (8%) 571 (5%) 541 (5%) 512 (5%) 1064 (9%) |
| Drug offenses (10,766) | 1 - 2 years at hard labor 1 - 2 years in prison 2 - 3 years in prison Other sentences | 3,894 (36%) 3,490 (32%) 1,791 (17%) 1591 (15%) |
In comparison to other countries in the developed world, Japan has a unique prosecutorial system. 99 percent of criminal defendants are convicted in Japan, and almost all are convicted following their own confession. Prosecutors tend to bring charges only when they have a signed confession from the accused, and such confessions often occur after long questioning by police. Although defendants have a right to counsel, it is generally not possible for them to obtain counsel between their arrest and indictment. This makes it difficult to judge the true extent of criminal activity in Japan, since many possible criminals refuse to confess and are thus never indicted.
Japan has a death penalty that can be invoked by the Minister of Justice for murder, arson, and crimes against humanity. The death penalty's constitutionality has been challenged by some advocacy groups in Japan but continues to be upheld by the Supreme Court. There are five other basic forms of criminal punishment in Japan: imprisonment at hard labor, imprisonment, fine, detention (less than 30 days), and minor fine (less than ¥10,000). Japan has been criticized for giving lenient punishments for some crimes, most notably rape (which carries a typical sentence of 2 - 5 years in prison, and a theoretical maximum of fifteen).
Note: The many penalties in the Criminal Law are reinforced in 2004. Therefore, the lower limit of the penalty of rape has been 3 years in prison, and a theoretical maximum has been twenty.
Tort law
Japan's tort system sees considerably less activity than tort systems in Western Europe and North America. One reason for this is that attorney's fees are based on the amount of damages sought in the suit, not the actual damages won. Because Japan does not use juries, judges decide the outcome of cases, and are usually not easy to sway emotionally. As a result, many individuals choose not to sue when their odds of winning seem low, and when they do sue, they tend to sue for small amounts of damages.
The bar and legal education
Barristers in Japan are called bengoshi (弁護士). To become a bengoshi, a person must graduate with a bachelor's degree from a law faculty at a Japanese university, and then spend two years apprenticed to judges through the Legal Research and Training Institute in Tokyo. Admission to the LRTI is extremely competitive and is based on a written examination with a 3% pass rate. Even graduates of the University of Tokyo, which is generally believed to have the best law faculty in Japan, only have a 10% pass rate on the LRTI exam. Many bengoshi must take the exam three or four times in order to gain admission.
Although bengoshi are the only individuals allowed to argue disputes in court, other professionals, such as accountants, tax specialists, and notaries, are allowed to give legal advice. Many of these individuals are law students who were unable to pass the LRTI examination. Japan is often said to have dramatically fewer lawyers than other countries such as the United States; however, the total proportion of legal specialists in both countries is about the same.
Foreign lawyers can apply for the special status of gaikokuhô jimu bengoshi (外国法事務弁護士), or "attorney for foreign law matters," which allows them to give advice on their home country's law, but does not allow them to argue cases in Japanese courts. Gaiben are strictly regulated and must have several years of experience as attorneys in their home country.
The judiciary
Japan's court system is divided into four basic tiers.
There are 438 Summary Courts (簡易裁判所 Kan'i-saiban-sho) scattered around Japan. They mostly handle small claims civil cases (disputes not in excess of ¥900,000), as well as minor criminal offenses. They are only able to imprison defendants in a few special cases, and cannot in any event imprison a defendant for more than three years. Summary Courts are presided over by one judge. Civil cases in the Summary Court are appealed to the District Court, while criminal cases are appealed to the High Court.
There is one District Court (地方裁判所 Chihô-saiban-sho) in each prefecture, except for Hokkaido which has four. District Courts have original jurisdiction in felony cases and in civil cases where the disputed amount is over ¥900,000. They also handle bankruptcy hearings. Each District Court trial is presided over by at least one judge: two associate judges are also called in for appellate cases, or for criminal cases where the maximum penalty would be in excess of 1 year in prison. Attorneys sit on either side of the courtroom, facing the center. In a criminal case, the accused faces the judges from the rear of the courtroom. The witness box is in the center, also facing the judges.
There are eight High Courts (高等裁判所 Kôtô-saiban-sho), located in Sapporo, Sendai, Tokyo, Nagoya, Osaka, Hiroshima, Takamatsu, and Fukuoka. Each one serves a defined circuit of several prefectures. There are also "branch offices" of the district courts in Akita, Toyama, Okayama, Matsue, Miyazaki, and Naha. The High Court usually sits in the same manner as a three-judge District Court, although it sits with five judges for certain cases (such as Fair Trade Commission-related cases). Each court is led by a President, who is appointed by the Cabinet. An appeal to the High Court is called kôso (控訴).
The Supreme Court (最高裁判所 Saikô-saiban-sho) is located adjacent to the National Diet Building in Nagatacho, Tokyo. The "Grand Bench" (大法廷 Daihôtei) of the Supreme Court has fifteen justices, who are appointed by the Cabinet with the Emperor's approval. The Grand Bench is subdivided into three "Petty Benches" (小法廷 Shôhôtei) of five justices each, who hear incoming appeals and recommend them for an audience before the Grand Bench. An appeal to the Supreme Court is called jôkoku (上告), and requires either an error in the interpretation of the Constitution, or an error in the interpretation of case law from the Supreme Court or High Court.
In addition to these strata, there is also a Family Court (家庭裁判所 Katei-saiban-sho) tied to each District Court, as well as in over 200 branch offices throughout the country. Family Courts primarily deal with divorce and juvenile delinquency cases, although they have a broad jurisdiction that encompasses all forms of domestic disputes, including correcting koseki registration data and partitioning estates. Their power is largely limited to mediation, and if a settlement cannot be reached between the parties, the case is transferred to the District Court.
Juries have not been used in Japan since 1943, although pending legislation (as of March 2004) in the Diet of Japan seeks to form special judiciary panels for serious criminal cases, which would include randomly-selected citizens.
Law enforcement
The main law enforcement agency in Japan is the National Police Agency (警察庁 Keisatsuchô), which reports to the prime minister. Most day-to-day policing is carried out by prefectural police, which report to prefectural governors. Administrative law enforcement duties are carried out by inspection departments of the various cabinet ministries.
See also
Further reading
- Port and McAlinn, Comparative Law: Law and the Legal Process in Japan (Carolina Academic Press, 2003), ISBN 0890894647
- Milhaupt et al., Japanese Law in Context: Readings in Society, the Economy, and Politics (Harvard, 2001), ISBN 0674005198
- Oda, Japanese Law (Oxford, 2001), ISBN 0199248109
- Ramseyer and Nakazato, Japanese Law: An Economic Approach (Chicago, 2000), ISBN 0226703851
- Oda, Basic Japanese Laws (Oxford, 1997), ISBN 0198256868
- Haley, Authority Without Power: Law and the Japanese Paradox (Oxford, 1994), ISBN 0195092570
External links
- Japanese Wikipedia article on "List of Japanese laws" (contains links to many key Japanese laws) (http://ja.wikipedia.org/wiki/%E6%97%A5%E6%9C%AC%E3%81%AE%E6%B3%95%E5%BE%8B%E4%B8%80%E8%A6%A7)
- Links on Japanese law (http://www.law.tohoku.ac.jp/tohokulaw2.html)
- Supreme Court of Japan (http://www.courts.go.jp/english/ehome.htm)
- Summaries of major court cases (http://www.senrei.com/)
- National Police Agency (http://www.npa.go.jp/english/index.htm)
- Japanese Family Laws in English and Japanese (http://www.crnjapan.com/japan_law/en/index.html)