Tokugawa Shogunate – early 17th century
Governed with the sankin kotai system – shogun held power by holding family members of provincial leaders within a few miles of Edo.
Conflict was resolved by administrative magistrates in Edo. The innkeepers of Edo essentially became the first legal advisers in this period.
i. This provides some background into the low esteem that Japanese people may hold for the legal system and profession.
Traditionalist Theory
Japan is a society of one people. Because of this they want to avoid confrontation. Apology makes everything better.
Wilson’s dorobo example.
i. Keep in mind that the book explains that Japan is first when it comes to asserting and defending patent rights, but seemingly only in the US.
Revisionist Theory
Also believe that harmony holds this society together, but people don’t assert their rights because of the ineptitude of the system.
This system is too difficult for people to actually use – lack of lawyers, cost of lawsuit, excessive time, stigma.
i. Also litigation may represent a failure in social obligations, which could explain the stigma attached to lawsuits.
1. Wilson’s asbestos example
Rationalists
The system works just fine like it is. People understand how the system works and take care of problems themselves because of it.
i. For example may know about high costs v lo w settlements and decide they can do better outside the system.
ii. Also, resorting to the Yakuza to enforce rights may represent the equivalent of appealing to the samurai, etc.
Informalists
Things are done under the table. Law suppresses tension, doesn’t assert personal rights.
i. For example, the court only acted in the Minamoto disease cases because of public pressure, not because of any real legal principles.
1. Naiatsu/gaiatsu
1889 constitutional monarchy develops; codes adopted in 1898. Japan intended to expel the foreigners by appearing to cooperate.
Japan wins wars against the Chinese and Russia.
Sources of Law in Japan
Heirarchy of law in Japan
i. Constitutional
ii. Treaties (statutory law may not be superior to treaties) – Constitutionally, statutes may not conflict with statutes.
1. What does this mean?
iii. Statute – all contained in the Roppo Zensho
1. Be sure to at least know what is contained in the Roppo Zensho.
iv. Delegated legislation – other bodies given the mandate to develop rules to cover limited circumstances or areas
1. How is this different from administrative law?
2. Seirei – cabinet orders
3. Shorei – what is shorei?
4. Kisoku – done by administrative commitees
v. Ordinance – article 94 of the Constitution
vi. Judicial opinions – civil law country but judicial opinions do have at least some persuasive force. In theory, old opinions shouldn’t matter but they do
vii. Custom – Hourei ten (1898) – if there’s no solution in the law, look to custom.
1. So much of current Japanese law comes from outside, so the custom fallback allows the law to retain some Japanese flavor.
2. Examples?
viii. Administrative guidance – gyosei shido – effectively suggestions from govt officials that is technically non-binding because its not actually law.
ix. Academic writings – can be somewhat persuasive
x. American law is also very influential, especially the US Constitution and the US Supreme Court.
Branches
i. Executive – cabinet; Prime Minister is the head of the cabinet.
ii. Legislative – the Diet
iii. Judicial
Constitution
i. Pottsdam declaration forced Japan to become a democracy.
1. Article 31 – property is missing.
2. Article 29 – protects property, but property may be taken for public use upon just compensation.
3. Article 13 – the concepts here (right to happiness) have mainly been applied in the criminal context.
The Codes
i. Roppo Zensho consists of six parts (come from France and Germany enacted 1898).
1. Note, this is strange because Tokugawa magistrates acted more like common law judges than civil law judges.
2. Constitution – the common law constitution
3. Civil code (Minpo) – second only to the constitution
a. Changed the law of relatives and the law of succession were changed to be more consistent with the common law constitution. The rest of the civil code remained basically the same as adopted in 1898.
b. Consists of
i. General legal principles
ii. Law of property
iii. Law of obligations
iv. Law on relatives
v. Law of succession
1. Could be a question on what kind of changes to the constitution. Could go into the need to amend the constitution and the civil code with regard to the Empress.
vi. Few actual changes have been made to the Civil code since its adoption (exception Family law a
ss than three years.
b. Very low representation by counsel in summary court. Not worth a lawyer’s time because of the long time frame involved.
v. Family Courts
1. Must file a request for conciliation before filing for divorce.
a. If one party doesn’t show up for conciliation, or if the conciliation fails, there won’t be a default judgment, must then try again and then actually go to trial.
2. Family courts also handle juvenile matters.
a. Under age of sixteen will be handled by family court, but even the Kobe kid went to family court.
b. Over sixteen can be certified as an adult.
vi. Selection of judges
1. Eligible to take the bar after second year, if you pass on the first try you don’t even have to finish undergrad.
a. Go to the legal and research training institute.
i. Used to be 18 months of study and six months of practical training.
ii. Now eighteen months overall.
b. At the institute every year they try to select around 80 judges.
i. People try to shy away from becoming judges because it doesn’t pay well.
ii. Become an assistant judge for 10 years then become a full judge and can hear cases on your own.
vii. High court judges appointed by the cabinet. 290 judges for 8 different courts.
1. Have original jurisdictions in limited circumstances.
2. Usually do appellate work.
a. Review is de novo.
3. Most work done by three-judge panels. Sometimes five.
4. Appeal to the SC used to be a matter of right. Now more like a cert situation.
a. Do the justices grant cert in order to drive public policy? What was the Justice’s name? Anything else we should remember from the Supreme Court Trip?
b. 15 SC judges broken down into 3 petit benches.
c. 5-5-5 system – law professors, etc, practicing attorneys and existing judges.
i. Try to also make sure that all of Japan is represented.
