LEGAL SYSTEM IN JAPAN: HISTORY, JUDGES, LAWYERS, LONG TRIALS, CONVICTIONS

LEGAL SYSTEM IN JAPAN

Japan has an independent judiciary, consisting of a Supreme Court, 10 high courts, a district court in every prefecture and every major city (for a total of 50) and a number of family courts to settle domestic complaints. Supreme court judges are chosen by the cabinet. They can vote be thrown out in a popular vote if the majority of voters vote to oust them, something that has never happened.

The Japanese legal system and appeal system have reputation for being ridiculously slow. Many legal matters are solved with counselors in offices rather than judges in court rooms. The entire judicial system is relatively small and isn’t capable of taking on that many cases. The costs of ligation are very high. Japan’s court system is basically a three trial system in which parties to a dispute--- following a court hearing and decision---have the right to undergo two additional court hearings and decisions, as stipulated by the procedures for appeal (koso) and, ultimately, final appeal (jokoku). However, the number of court judges is small in comparison with the number of court cases submitted for judgment. As a result, court decisions usually take a long time.

In Japan, there is no discovery process, and no recovery of punitive damages. Most court cases are overseen by a panel of three judges. The prosecution team sits on right side of the judges and defense sits on the left side. Defendants plead guilty or not guilty. Both the prosecution and defense make opening and closing statements. Until recently there were no jury trials. Under the country's judicial reforms in 2009, a court picks lawyers to serve as prosecutors who file indictments if a committee for the inquest of prosecution decides twice that a suspect should be indicted.

Sociologists have long argued that the Japanese sense of duty, harmony and community spirit discourages public confrontation and negates the need for judicial solutions. Seeking legal action has traditionally been viewed as a weakness and an embarrassment, and sign that the normal process of solving problem was somehow insufficient. Martial problems were traditionally worked out with the help elder family members. Business conflicts were worked out through meetings and negotiations. In many cases bureaucrats settle matters in Japan that are solved in courts in the United States.

Critics of the Japanese legal system argue that it offers fewer protections for individual rights than other systems and it discourages people with legitimate complaints from taking their concerns to court, especially when their complaints are against the government and big business.

A television show featuring lectures about justice, fairness and equality by Harvard professor Michael J. Sandel is very popular in Japan.

Japanese Supreme Court

All legal conflicts, whether of a civil, administrative, or criminal nature, are subject to judgment in courts of law. Established by the constitution, the Supreme Court is Japan’s highest judicial organ. There are four types of lower courts, whose numbers and English designations (as of April 2011) are as follows: 8 high courts, 50 district courts, 50 family courts, and 438 summary courts. According to the constitution, no so-called extraordinary tribunal is to be established, “nor shall any organ or agency of the Executive be given final judicial power.” According to article 6 of the constitution, “the Emperor shall appoint the Chief Judge of the Supreme Court, as designated by the Cabinet,” while the cabinet directly appoints the other 14 Supreme Court judges. To be eligible for nomination, as indicated in the Law on Courts, one must be a person “of high discernment, well grounded in law, and at least 40 years old.” [Source: Web-Japan, Ministry of Foreign Affairs, Japan]

“A minimum of 10 members must be selected from among those who distinguish themselves as judges, public prosecutors, lawyers, and professors or assistant professors in legal science in universities; the rest need not be jurists. All judges of the Supreme Court must be reviewed by the people in the first general election following appointments, and every 10 years thereafter. The retirement age is 70. Supreme Court hearings and judgments are made by either the grand bench, which requires the presence of at least nine court justices, or by one of three petty benches, each consisting of from three to five justices. The grand bench examines cases, referred by one of the petty benches, that involve constitutional questions, precedents, and so on. In addition to its authority as the sole court of last resort, the Supreme Court has the authority to set rules on litigation procedures, together with other special rights of judicial administration, including the nomination of a list of persons from which the cabinet appoints judges for the lower courts. [Ibid]

History of Japanese Legal System

Kugatachi was a form of divination used in the 8th century to determine the guilt or innocence of suspected criminals. Suspects were forced to remove a stone from boiling water and the verdict was decided on whether the suspects hand had blistered or not. In the 10th century a judge ordered a statue of Jizo, the patron travelers, tied up because he didn't protect kimono merchant who was robbed.

In feudal times, daimyos and shoguns encouraged their subjects to explore all other options of solving disputes before coming to them. In the Edo period, legal matters were taken care of at kujiyado (litigation inns). The owners of these inns were the equivalent of lawyers. Mostly they dealt with disputes over moneyf Og the 35,000 civil suits that were addressed in 1718, about 33,000 of them involved money.

During the Meiji Period (1868-1912) Japan adopted a Civil Code, Commercial Code introduced and bunch of other laws influenced by laws in Germany and France. In the 1920s and 30s a string of lawsuits over money prompted the government to pass a series of laws designed for people to seek mediation rather that judicial action.

Japan had a jury system for 15 years from 1928 to 1943 but it was abolished by Japan’s military government and replaced with a system in which three-judge panels presided over trials which almost always ended with a conviction and had little input from ordinary citizens.

Websites and Resources

Good Websites and Sources: Wikipedia article on Law of Japan Wikipedia ; Japanese Law Translation japaneselawtranslation.go.jp ; Overview of Judicial System courts.go.jp/english/system ; Cornell University Overview of the Japanese Legal System pdf file scholarship.law.cornell.edu ; Supreme Court of Japan courts.go.jp ; Japan Law.Info japanlaw.info ; Japan Law Information cs-trans.biz/J-Law ; Statistical Handbook of Japan Judicial Branch Section stat.go.jp/english/data/handbook ; 2010 Edition stat.go.jp/english/data/nenkan ; News stat.go.jp

Libraries, links and Research: Japan Federation of Bar Associations nichibenren.or.jp ; Links to Sources of Japanese Law, Columbia Law School law.columbia.edu/library ; Japanese Legal Research at the University of Washington law.washington.edu ; Department of Law at Otaru University otaru-uc.ac.jp/dept/law ; Wash Law Legal Research on the Web washlaw.edu/forint/asia/japan ; Stanford J-Guide with Links on Japanese Law jguide.stanford.edu/site/law_regulation ; Law Library of the Library of Congress loc.gov/law/help ;

Constitution Constitution of Japan solon.org/Constitutions/Japan ; Birth of the Constitution of Japan ndl.go.jp/constitution ; Research Commission on the Constitution shugiin.go.jp ;

Links in this Website: CRIME IN JAPAN Factsanddetails.com/Japan ; THEFTS AND ROBBERIES IN JAPAN Factsanddetails.com/Japan ; JUVENILE CRIME IN JAPAN Factsanddetails.com/Japan ; FAMOUS MURDERS IN JAPAN Factsanddetails.com/Japan ; FAMOUS MURDERS IN JAPAN INVOLVING CHILDREN Factsanddetails.com/Japan ; YAKUZA AND ORGANIZED CRIME IN JAPAN Factsanddetails.com/Japan ; YAKUZA ACTIVITIES AND VIOLENCE Factsanddetails.com/Japan ; AUM SHINROKYO CULT AND THE TOKYO SUBWAY SARIN GAS ATTACK Factsanddetails.com/Japan ; SECURITY, GUNS AND POLICE IN JAPAN Factsanddetails.com/Japan ; LEGAL SYSTEM IN JAPAN Factsanddetails.com/Japan ; DEATH PENALTY AND PRISON IN JAPAN Factsanddetails.com/Japan

Japanese Legal Procedures and Customs

In the Japanese justice system, maintaining order has traditionally had precedence over establishing guilt "beyond a reasonable doubt" . It is very unlikely for someone to be acquitted after they have been indicted.

In Japan there is no plea bargaining. Sting operations can only be mounted with specific crimes involving narcotics and drugs, To conduct wiretaps warrants used by judges are needed and are allowed for only four categories of crimes: narcotics, guns, organized murder and mass human smuggling.

Expressing remorse is given a lot of weight in the Japanese legal system. Many Japanese lawyers tell their clients to say they committed the crime they are charged with even if they didn’t do it because judges show great leniency towards defendants that express remorse and give out harsh sentences to defendants who steadfastly insist they didn’t do it. In murder cases expressing remorse can be the difference between a prison sentences and execution.

Arrests of white collar criminals often takes place with an army of bureaucrats and policeman in suits entering an office and carrying away boxes of documents and records. The accused inevitably place a coat over their head to hide their faces.

In January 2007, police were ordered to pay $5000 to a hotel owner who was forced to step on the names of members of his family---a tactic used to root out Christians in the Edo Period---during police interrogations to extract a confession, The hotel owner had been accused of distributing beer to construction companies in an effort to get their employees to vote for certain candidates in an election.

"In Japan, it's often the case that decisions that come from the top must be obeyed," Hiroshi Nishihara, law professor at Waseda University, told the Washington Post. Employees, particularly those in the public sector, are obliged to adhere to their bosses' orders, he said.

The Criminal Procedure Code stipulates that records of statements made during investigations by prosecutors and police officers are considered hearsay. Unless it is proved that such statements were made voluntarily, they are viewed as illegal and are prohibited from being used as evidence in trials. Records of statements are deemed illegal if, for example, suspects are tortured or intimidated; investigators promise to quickly release suspects in exchange for favorable statements; or investigators tell lies to suspects to guide them into favorable statements. [Source: Yomiuri Shimbun, February 18, 2012]

Juveniles, See Crime

Arrests, Convictions and Confessions in Japan

Japanese police have an astounding arrest, conviction and confession-evoking rate. The conviction rate of those charged by police is 99.8 percent. About 95 percent of all cases that go to trail involve criminals who have confessed while in police custody. In most years less than 100 people are acquitted in criminal trials. In 2006, 92 were. In 2005, 63 were. Before 2002, between 30 and 50 were.

Japan convicts 99 percent of its criminal cases, compared to 89 percent in the United States. Judge Masahiro Hiraki told the Los Angeles Times, “The conviction rate is high here because prosecutors only go after cases that would surely lead to a conviction." About 90 percent of defendants plead guilty.

According to a police report, arrests were made in 96.6percent of Japan’s 1,392 homicide cases in 2005. One former police man said the main reason for this is that police try to avoid adding homicide to their caseloads unless the identity of the killer is obvious.

On police dramas as well as in real life, detectives usually solve crimes by extracting confessions rather than doing leg work and investigations to track down evidence. Katsuhiko Nishijima, a Tokyo human rights lawyer, told the Los Angeles Times, “The general public has trust in this confession system....It’s the Japanese DNA: There’s a belief that if you commit a crime, you should come clean and confess. When someone is arrested, the newspapers report that “police are aggressively interrogating the suspect.” And if he doesn’t confess, the public are unhappy. “Ah, he’s still denying it,” they say.”

Prosecutors' 99 Percent Winning Rate Being Questioned

Kotaro Kodama and Mari Sugiura wrote in the Yomiuri Shimbun: “Prosecutors in Japan have long boasted that 99 percent of defendants they indict on serious criminal charges, such as murder, are found guilty by the courts. With the introduction of the lay judge system three years ago, however, they are shocked to find that courts are acquitting defendants or reversing guilty verdicts in more and more trials. Meanwhile, defense lawyers are stepping up their efforts to make this trend more pronounced. [Source: Kotaro Kodama and Mari Sugiura, Yomiuri Shimbun, April 21, 2012]

In Japan, the percentage of guilty verdicts in criminal trials has been accepted as "99 percent" since soon after the end of World War II. What had supported the high rate up until now was carefully organized judicial activity based on a huge volume of evidence collected by police and prosecutors, and defendants' testimony obtained through prolonged questioning. [Ibid]

In April 2010 the Supreme Court said, "A guilty ruling cannot be handed down unless there are facts that cannot be properly explained unless the defendant is the perpetrator." In the past cases where there was no direct evidence such as a confession by the defendant or testimony by eyewitnesses cases were often decided based the prosecutors accumulated circumstantial evidence, such as the fact that the defendant was apparently near the crime scene when the murder occurred. The Supreme Court decided that clearer evidence was necessary for a guilty verdict.

The decision was based on a case in which a 28-year-old woman and her 1-year-old son were killed in a condominium in Hirano Ward, Osaka, in 2002. Lower and high courts concluded that the woman's father-in-law, 54-year-old former prison officer Takemitsu Mori, killed the two. However, the Supreme Court remanded the case to the Osaka District Court for a new trial after deciding that evidence in the cases---a car of the same model and color as Mori's was seen parked near the crime scene and patterns in DNA detected on a cigarette butt in an ashtray near the scene matched those of the defendant---was not sufficient for a guily conviction. In December 2010, a not-guilty ruling was handed down in a lay judge trial at the Kagoshima District Court over a case in which prosecutors demanded a death sentence. The judges there referred to the legal precedent in the Osaka case. Additionally, there have been many trials at which defense lawyers have insisted their clients are not guilty based on the legal precedent. [Ibid]

Further increasing prosecutors' sense of urgency is that there have been many cases in which judges denied the creditworthiness of prosecutors' documents about defendants' confessions. In February, in a case in which three family members were killed in Hiroshima, the Supreme Court judge handed down a not-guilty ruling, saying, "The defendant's confession and the objective evidence are contradictory.” [Ibid]

A senior prosecutor openly voiced alarm at the recent series of acquittals, saying: "The value of defendants' confessions has been denied and we've been told to submit direct evidence even if we had accumulated circumstantial evidence. Courts in recent years are strange." Legal experts said the repeated not-guilty rulings seemed to be affected by changes in judges' attitudes. A judge specializing in criminal trials said: "Before, there was a sense of trust in the premise that investigation authorities were working properly. But after ordinary citizens began joining trials under the lay-judge system, trials have placed more importance on strictly checking confessions and evidence.” [Ibid]

A veteran judge specializing in criminal trials said: "The age when prosecutors can win by collecting evidence in line with their superiors' assumptions has ended. Prosecutors need to consider methods of proof, including sound and video recordings, that can convince judges and citizens in court.” [Ibid]

Judges in Japan

The three judges that preside over a case deliberate in secret and issue one verdict in the name of all three judges. The opinion of the chief judge is often given the most weight. Other judges sometimes defer to the chief judge and keep their own opinions to themselves. It is illegal for the deliberations of judges to be disclosed.

Judges undergo a rigorous selection and training process. They pride themselves on issuing uniform judgments. Judges caught officially on camera always have a stern, emotionless expression. Court decisions are announced with a guy running out the building holding up a cloth scroll that has the decision written on it.

One former judge said, “Judges in Japan tend to be influenced by the media and social pressures...And Japanese tend to believe that the prosecutors office, as an arm of the government, wouldn’t do anything intentionally wrong.”

In May 2008, Yoshiharu Shimoyama, a prefectural judge was arrested for stalking and harassing a female court employee. After the woman field a complaint the judge set up the investigation and destroyed evidence .

Lawyers in Japan

The number of lawyers in Japan increased from 17,000 in 2000 to 30,000 in 2010. Still there are only around one lawyer for every 5,000 people in Japan, compared to one for every 40 people in the United States. Put another way Japan has 21.44 lawyers per 100,000 people compared to 372.7 per 100,000 people in the United States and 222.3 in Britain. One reason for the low number of lawyers is a lack of crime and litigation. Most Japanese lawyers are litigators.

There is currently a shortage of lawyers and Japan wants more of them. Until recently the bureaucracy only certified around 1,000 new lawyers, judges and public prosecutors annually. Candidates have to pass a national bar exam and take an 18-month course run by the Supreme Court.

For decades only the top 500 people who took the bar exam passed. In 1999, the number was raised to 1,000. A report by the government Judicial Reform Council has recommended licensing 3,000 legal professionals a year, setting up by U.S.-style law schools, and selecting judges from larger group of candidates.

There are 74 law schools in Japan. Less than one percent of the students who enroll in undergraduate law courses become lawyers and only three percent of those that take law exam pass it. In 1999, some 20,000 people took the exam and only 1,000 passed. The 19,000 who didn't pass sought jobs in companies and government agencies doing a wide variety of legal tasks. Many of those who do pass the law exam attribute their success to cram schools that focus on test taking strategies and answering test questions and little else.

A new, easier law exam and new schools were introduced in the mid 2000s. The pass rate was 48.25 percent when the first new test was given in 2006 to 2,091 graduates of a two-year law schools and four year undergraduate law programs. The tests and law schools were placed under review because the pass rate was expected to be 70 to 80 percent. The following year the test was given to individuals that didn’t go to law school at get an undergraduate degree in law. This gave rise to concerns of creation of marginal law schools and cram schools that would be focused only preparing students for test.

A new national bar exam was used in all 74 of Japan law schools in 2008. Only 33 percent of the people who took the national bar exam in 2008 passed, down from 40 percent in 2007 and 48 percent in 2006.

A lower number of candidates have passed the law exam than expected. In 2009, only 28 percent passed rather than the expected 70 percent to 80 percent. The reason for this many think is the excessive number of law schools and the low quality of the schools and the students at them. In 2010, only 25.4 percent of the people who took the bar exam passed it.

More law schools have opened that were anticipated since the legal education system was reformed. Originally it was thought that 30 schools offerings two-year and three-year course were would be set up. But 74 opened with 5,800 students.

Long Trials in Japan

Only a small percentage of criminal trials take more than two years. However high profile cases can sometimes last more than ten years giving the impression that justice in Japan is agonizingly slow. Suits involving patent infringements, environmental damages, medical and malpractice and high profile murder cases take particularly long. The Recruit bribery scandal trial in the 1980s and 90s lasted for 13 years and involved 322 hearings.

Many trials are prolonged by demands by the defense that testimonies be thrown out as evidence. Long arguments are then made about whether or not the statements were coerced and how the accused’s testimony matches up against other statements he or she made. Most of the time spent in a 10 year corruption trial was taken over whether or not the deposition in which the accused admitted to the charges was obtained through intimidation by the prosecutors. Seventy-one witnesses testified on the matter. The accused died before a decision on his guilt was made.

Court cases in which the defendants deny the charges against them, have many charges made against them or deny allegations they once admitted to last for a long time. Traditionally, courts have held hearings only once a month in cases in which the defendant pleads not guilty to the charges against him or her.

Litigation and Settling Legal Disputes in Japan

The Japanese have traditionally shied away from litigation and look downed on legal contacts and formal written agreements. Few Japanese write wills, file lawsuits or consult lawyers concerning disputes (some prefer contacting local gangsters).

According to Supreme Court statistics 73 percent of civil lawsuit were undertaken in 2010 without a lawyer, up 14 percent from 2000 in spite of the fact there are almost as many lawyers in 2009 as there were in 2000. The statistic some analysts say appears to be a reflection of the high cost of hiring a lawyer more than anything else. Many of the cases involved borrowers harassed by moneylenders demanding their money back. In many cases the moneylenders had charged unlawfully high interest rates.

The Japanese way is to settle disputes privately and avoid public embarrassment. Courts often not expected to intervene in disputes between two parties as the parties are expected to work out their problems between themselves. Car accident claims are usually worked amicably with an arbitrator determining fault on a percentage basis and requiring the people involved and their insurance companies to pay accordingly.

"The concept of settlement by law is not as strong in Japan," one lawyer told the Washington Post. "In the past, people used to resort to someone in the community. The number of lawyers is not very large. So there is a tendency here to use yakuza."

The attitude towards litigation began to change somewhat in the 2000s as employees began demanding rewards for work they had done for their companies (See Science, Inventions Blue LEDS, ) and companies began going after competitors in China, South Korea and Taiwan and elsewhere for copying their designs and infringing on their patents,

In many cases Japanese companies have chosen to settle patent and intellectual rights cases in American courts. In some cases large companies have bought up the rights to patents and set about suing companies that violated them.

Damage awards are generally smaller than in the United States. Because decisions are fairly uniform and the outcome of a dispute is fairly predicable, parties are more willing to settle and make deals rather than go to court of a big payoff.

Law and the Yakuza

.Jiken-ya ("incident specialists") are yakuza members who have traditionally been called in to settle disputes rather than lawyers. After an auto accident, for example, one party might hire the yakuza to pay a visit to the other party and "propose" a settlement. Usually an agreement is made without threats or violence. But if the money isn’t paid gangsters will threaten to break bones or put daughters to work in massage parlors until the debt is paid.

One sociologist told Newsweek, "There's long tradition in Japan of people not having recourse to formal legal institutions." Another told the Yomiuri Shimbun, “When there are problems, the police don’t act right away, and it takes time and money to hire lawyers. So groups such as ours are needed.”

Reforms of the Legal System in Japan

Proposed reforms of the Japanese legal system include: 1) limiting first-stage trials to two years; 2) introducing a mixed jury system with lay judges or jurors picked from the public.

To speed up trials reformers have suggested hold hearings twice a week rather than once a month and urging prosecutors to reduce the number of charges made against the accused to save time.

Changing the criminal code is very slow. For example, Article 200 of the Criminal Code was declared unconstitutional in 1973 but wasn't removed from the books until 1995.

Japan passed its first freedom of information act in 2000. Before then, ordinary citizens and environment groups could not gain access to environment impact studies on project built in their communities. Lawyers, academics and citizens groups had lobbied for the law for 20 years.

The Justice ministers is look into community service and partial suspension of prison sentences as ways to ease the overcrowding on Japan’s jails.

In April 2010, the Diet passed a law that abolished the statute of limitations for murder (it had previously been 25 years) and extended the statute of limitations from 15 years to 30 years for rape resulting in death, from 10 years to 20 years for dangerous driving resulting in death and from five years to 10 years for negligent driving resulting death.

Text Sources: New York Times, Washington Post, Los Angeles Times, Daily Yomiuri, Times of London, Japan National Tourist Organization (JNTO), National Geographic, The New Yorker, Time, Newsweek, Reuters, AP, Lonely Planet Guides, Compton’s Encyclopedia and various books and other publications.

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© 2009 Jeffrey Hays

Last updated January 2013

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