Japanese law

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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

[edit] Sources of law

File:The Diet.jpg
The Diet is Japan's national legislature, responsible for drafting new laws.

Statutory law originates 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.

[edit] Six Codes

The main body of Japanese statutory law is a collection called the Six Codes (六法 roppō):

  1. the Civil Code of Japan (民法 Minpō, 1896) in five volumes (General Provisions, Rights, Claims, Families, and Inheritance)
  2. the Commercial Code of Japan (商法 Shōhō, 1899)
  3. the Criminal Code of Japan (刑法 Keihō, 1907)
  4. the Constitution of Japan (日本国憲法 Nippon-koku-kempō, 1946)
  5. the Criminal Procedure Code of Japan (刑事訴訟法 Keiji-soshō-hō, 1948)
  6. the Civil Procedure Code of Japan (民事訴訟法 Minji-soshō-hō, 1996)

[edit] 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.

[edit] Civil law

[edit] Contracts

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.

[edit] Torts

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.

[edit] Property

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.

[edit] Criminal law

Japanese criminal sentencing, 1994
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 penalties in the Criminal Law were revised and reinforced in 2004. Therefore, the lower limit of the penalty of rape is now 3 years in prison, with a theoretical maximum of twenty.

[edit] 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.

[edit] Legal professions

Japan recognizes a number of legal professions. While Japan is often said to have dramatically fewer lawyers than other countries such as the United States, the total proportion of legal specialists in both countries is about the same. The Japanese government has also been taking steps in recent years to increase the number of legal professionals nationwide.

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. Those admitted to the LRTI are placed on bengoshi, prosecutor, or judge tracks within the education system. Judges and prosecutors can later become bengoshi and vice versa.

Law schools have emerged in Japan in the last few years, and the LRTI admissions process will be altered from 2006 so that only law school graduates, or graduates in other fields who complete a preliminary examination, will be allowed to take the exam. Under the new system, the LRTI apprenticeship will be shortened to one year, but the complete process will be extended for most individuals because of the extra 2-3 years needed for law school.

Although bengoshi are the only individuals allowed to argue disputes in court, other professionals, such as scriveners (司法書士shihōshoshi), accountants (公認会計士 kōninkaikeishi), tax specialists (税理士 zeirishi), patent agents (弁理士 benrishi) and notaries (公証人 kōshōnin), are allowed to give legal advice. In-house legal advisors at major corporations are almost entirely unregulated. Many of these individuals are law students who were unable to pass the LRTI examination.

Foreign lawyers can apply for the status of foreign solicitor (外国法事務弁護士 gaikokuhō jimu bengoshi, abbreviated gaiben), 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.

Membership in a bar association is mandatory for bengoshi and gaiben. Most prefectures have one local bar association, with the exception of Tokyo which has three (the Tokyo Bar Association, Dai-Ichi Tokyo Bar Association, and Dai-Ni Tokyo Bar Association).

[edit] Courts and procedure

Japan's court system is divided into four basic tiers, 438 Summary Courts, one District Court in each prefecture, nine High Courts and the Supreme Court. There is also one Family Court tied to each District Court. For details, see the Judicial system of Japan article.

[edit] Intellectual property

See: Japanese copyright law

[edit] 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

[edit] See also

[edit] Specific laws

[edit] External links

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