Judicial system of Japan? |
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Japan  This article is part of the series: Politics of Japan, Subseries of the Politics series |
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In the Judicial System of Japan, the postwar constitution guarantees that "all judges shall be independent in the exercise of their conscience and shall be bound only by this constitution and the Laws" (Article 76). They cannot be removed from the bench "unless judicially declared mentally or physically incompetent to perform official duties," and they cannot be disciplined by executive agencies (Article 78). A Supreme Court justice, however, may be removed by a majority of voters in a referendum that occurs at the first general election following the justice's appointment and every ten years thereafter. However, the electorate has not used this unusual system to dismiss a justice as of 2005. In the prewar system, in contrast, the executive bodies had much control over the courts.
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 Chihō-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 nine High Courts (高等裁判所 Kōtō-saiban-sho). Eight (Sapporo, Sendai, Tokyo, Nagoya, Osaka, Hiroshima, Takamatsu, and Fukuoka) serve defined circuits of several prefectures each; there are also "branch offices" in Akita, Toyama, Okayama, Matsue, Miyazaki, and Naha. The ninth is the Intellectual Property High Court (知的財産高等裁判所 Chiteki-zaisan-kōtō-saiban-sho) in Tokyo. A 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 kōso (控訴).
The Supreme Court (最高裁判所 Saikō-saiban-sho) is located adjacent to the National Diet Building in Nagatacho, Tokyo. The "Grand Bench" (大法廷 Daihōtei) 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 Shōhōtei) 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 jōkoku (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.
The legal system in Japanese society
As in other industrialized countries, law plays a central role in Japanese political, social, and economic life. Fundamental differences between Japanese and Western legal concepts, however, have often led Westerners to believe that Japanese society is based more on quasi-feudalistic principles of paternalism (the oyabun-kobun relationship) and social harmony, or wa. Japan has a relatively small number of lawyers, about 13,000 practicing in the mid-1980s, compared with 667,000 in the United States, a country with only twice Japan's population. This fact has been offered as evidence that the Japanese are strongly averse to upsetting human relationships by taking grievances to court. In cases of liability, such as the crash of Japan Airlines Flight 123 in August 1985, which claimed 520 lives, Japanese victims or their survivors were more willing than their Western counterparts would be to accept the ritualistic condolences of company presidents (including officials' resignations over the incident) and nonjudicially determined compensation, which in many cases was less than they might have received through the courts.
Factors other than a cultural preference for social harmony, however, explain the court-shy behavior of the Japanese. The Ministry of Justice closely screens university law faculty graduates and others who wish to practice law or serve as judges. Only about 2 percent of the approximately 25,000 persons who applied annually to the Ministry's Legal Training and Research Institute two-year required course were admitted in the late 1980s. The institute graduates only a few hundred new lawyers each year. Plagued by shortages of attorneys, judges, clerks, and other personnel, the court system is severely overburdened. Presiding judges often strongly advise plaintiffs to seek out-of-court settlements. The progress of cases through even the lower courts is agonizingly slow, and appeals carried to the Supreme Court can take decades. Faced with such obstacles, most individuals choose not to seek legal remedies. If legal personnel are dramatically increased, which seems unlikely, use of the courts might approach rates found in the United States and other Western countries.
In the English-speaking countries, law has been viewed traditionally as a framework of enforceable rights and duties designed to protect the legitimate interests of private citizens. The judiciary is viewed as occupying a neutral stance in disputes between individual citizens and the state. Legal recourse is regarded as a fundamental civil right. The reformers of the Meiji era (1868-1912), however, were strongly influenced by legal theories that had evolved in Germany and other continental European states. The Meiji reformers viewed the law primarily as an instrument through which the state controls a restive population and directs energies to achieving the goals of fukoku kyohei (wealth and arms).
The primary embodiment of the spirit of the law in modern Japan has not been the attorney representing private interests but the bureaucrat who exercises control through what sociologist Max Weber has called "legal-rational" methods of administration. Competence in law, acquired through university training, consists of implementing, interpreting, and, at the highest levels, formulating law within a bureaucratic framework. Many functions performed by lawyers in the United States and other Western countries are the responsibility of civil servants in Japan. The majority of the country's ruling elite, both political and economic, has been recruited from among the graduates of the Law Faculty of the University of Tokyo and other prestigious institutions, people who have rarely served as private attorneys. (see Civil service of Japan)
Legal and bureaucratic controls on many aspects of Japanese society were extremely tight. The Ministry of Education, Science, and Culture, for example, closely supervised both public and private universities. Changes in undergraduate or graduate curricula, the appointment of senior faculty, and similar actions required ministry approval in conformity with very detailed regulations. Although this "control-oriented" use of law did not inhibit the freedom of teaching or research (protected by Article 23 of the constitution), it severely limited the universities' scope for reform and innovation. Controls were even tighter on primary and secondary schools.
See also
Reference
- This article incorporates public domain text from the Library of Congress Country Studies. - Japan