The moral and technical dimension governing social relations is omnipresent in Japanese society. This is not based on the notion of subjective rights (rights which a person can claim) but essentially on the notion of duties towards others. As such, its legal system is mainly based on rights underlying duties. However, its legal system and its judicial system have been considerably influenced as the country has evolved, so much so that it results in a complex model, difficult to grasp from the outside …

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History of the Japanese legal system

From the outset, it should be noted that the Japanese legal system is inherited from China which can be difficult for the Japanese to admit. Indeed, in addition to the Western influence described below, Japan has undergone an oriental influence which is largely derived from Chinese legalism and Confucianism. The key common principle between the two countries is this concern to reconcile, to find a compromise, rather than the practice of litigation.

The end of the Sakoku (closure of the country), from 1600 to 1868 under the Edo era, and the abolition of feudalism allow the restoration of Meiji which will make the Emperor recover all of his powers. From 1868 and the reopening of the country, a breath of modernism will cross Japan still feudal eager to catch up with the Western countries to become an economic, industrial and military power capable of competing with them and of defending its interests as equals. What the archipelago will soon do.

From the start 19th century, Japan will begin to draw inspiration from the countries of Romano-Germanic law[1]. For example, he began to draw inspiration from the solutions of the German Civil Code and all of French criminal law of the time.

A century later, history has played a decisive role in the evolution of Japanese law with the unconditional surrender of Imperial Japan at the end of World War II. This development is characterized by a real political-legal revolution in which US law will come to compete with Romanist influences in many areas of law, starting with the organization of justice.

Today, the Japanese system is a system qualified as mixed law that is to say a country that has undergone several influences. In this case, he mixes here the civil law tradition (Romano-Germanic) and the system of Common law[2]. The legal foundations of Japanese law are of Romano-Germanic origin. The legal technique of codification obviously made the exportation of the Romano-Germanic system easier. It is only for technical matters (commercial law) proceedings that Japanese law uses the rights of Common law. Thus, the Japanese legal system is part of the mixed law family[3] from these borrowings from the Romano-Germanic systems and Common Law which end up influencing each other. In fact, these two systems also coexist in other Nations as is the case in Canada and the Scandinavian countries. It should always be borne in mind that, given the considerable evolution of international, economic, financial, commercial, cultural and political relations, these families come together and influence each other.

The Japanese judicial system

The USA having occupied Japan from the end of the war until 1952, the Japanese judicial system was reformed under the influence of the Americans who did not, however, draft the country’s new constitution. Japan now has a parliamentary system that provides for a strict separation of powers with an Emperor which only has a protocol role within the State.

Two notable facts: first, in Japan, there are departments and regions like in France, but cities have more powers, particularly with extremely high regulatory power. For example, same-sex marriage is allowed in certain cities only. This important “local” power is due to the very high number of inhabitants per city. Secondly, there are elections at the level of metropolitan areas but not of regions and departments.

In Japan, there is no duality of orders of administrative and judicial jurisdictions as in France. Its system of jurisdiction is unitary.

The organization of the various jurisdictions in Japan is broken down, starting with the lowest level, as follows:

  • 438 summary courts (Kan’i-saiban-sho), with a single judge, who rule on cases of less than € 9,500 in damages. The peculiarity is that it is possible to appeal to the district courts if the judge does not grant your request;
  • at the higher level appears the collegiality of judges with 50 district courts (Chihô-saiban-sho) including a family room (Katei-saiban-sho), which is in charge of ruling only on family disputes, dedicated to each of these courts;
  • still a step above, is 8 Courts of Appeal (Kôtô-saiban-sho) with collegiality. Here, the appeal is a French appeal since the trial judges[4] will have here to restore, in law and in fact, on the case
  • at the top is a Supreme Court (Saikō-Saibansho), somewhat modeled on the US model except that here there are 15 judges, that they are not appointed for life and that they are appointed by the Cabinet (the Government) without hearing the Diet ( the parliament).

Note that the constitutionality review[5] in Japan is diffuse. In other words, the Supreme Court does not have a monopoly and it can therefore be exercised by other jurisdictions. In France for example, this is not the case since this control is exclusively reserved for the Constitutional Council. Very few laws are declared unconstitutional in particular because there is no Superior Council of the Judiciary[6] in Japan. There is no civil service statute like in France. It is the Secretariat of the Supreme Court which acts as the Superior Council of the Judiciary, which poses a problem of independence. Other originality: there are citizens’ committees elected at city level who can ask a prosecutor the reasons for closing the case.

All judges are professional judges. They are assimilated to civil servants in the American sense of the term, that is to say that they are renewed and renewable contracts. The distinction magistrates[7] and prosecutors[8] Is the same as that of the French model. As previously explained, there is no Superior Council of the Magistracy and it is therefore the Supreme Court which decides on the assignment of magistrates. There is therefore little contradiction between the lower courts and the Supreme Court. Magistrates are appointed for a ten-year term which amplifies the problem of undermining independence.

There are over 3,000 judges and almost 2,500 prosecutors in the archipelago. All lawyers take the same exam, which is otherwise very difficult. Because, there are only 20,000 avocados in Japan and the pass rate for the lawyer exam is less than 3%.

Japan remains above all a country of procedure and conformity. Everything is proceduralized in Japan (the way of standing, of working, life in general,…). The aspects of life that are legally regulated remain residual. In fact, there is real “natural” social control in Japan. For example, if you throw a piece of paper on the floor it will be pointed out to you. The social conformist is a very powerful norm (= the judgment of others). In Japan, litigation is generally not appreciated and avoided as much as possible. The recourse to justice thus remains rather rare and badly perceived in the company. This very conformist system officially calms potential conflicts. Like its society, Japanese law also favors compromise and conciliation.

If this powerful conformism has the advantage of offering a climate of peace, at least in appearance, especially with a low official crime rate, many cases that should go to court are simply not. We are thinking in particular of the specific cases of rape and sexual harassment. The victims’ journey to obtain justice is particularly oppressive as it is precisely necessary to break conformism and dare to stir up appearances of social peace in Japanese society. We will never forget the words of a Japanese rape victim we interviewed in 2016: “When I met a lawyer to describe my rape to him, he openly advised me against taking the case to court. Legal costs should amount to a year’s salary without any guarantee of winning the case, for lack of witnesses who witnessed the rape… ”.

Jordan MEHRAZ

Notes

[1] The Romano-Germanic family, also called a family of civil law tradition, is the most represented in the world with 77 of the 192 member countries of the United Nations. The Romano-Germanic system finds its source in the importance of the law (codification), which is the first source of law, and is characterized by an administration which obeys rules different from those which govern private relations.

[2] The family of Common Law finds its source in the place given to jurisprudence (legal decisions) which is the primary source of law and in its rule of law. judicial precedent. This rule requires that the decisions rendered by a court constitute binding precedents which are necessary and which must be followed by all the courts which are hierarchically inferior to it. The judicial precedent can still be overturned by what is called a reversal of jurisprudence. In the system Common Law the law is developed by jurisdictions, which confers a predominance of the casuistic rule (on a case-by-case basis). This system is also distinguished by an interweaving of substantive and procedural rules as well as by the absence of distinction between public law and private law.

[3] The concept of mixed legal system mixes several legal traditions. 63 of the 192 member countries of the United Nations are considered mixed systems combining the civil law tradition and one or more others.

[4] This appellation designates the practicing judges in the courts below the Supreme Court. Those who work in the latter are qualified as judges of law because they rule only in law while the trial judges analyze and qualify the facts and also rule in law.

[5] Constitutional control is a judicial control aimed at ensuring the conformity of legal standards (laws, decrees, regulations and all other official acts whatsoever) with the Constitution, which is the supreme legal norm, the most important, of a state. If the legal norm is found to be unconstitutional, that is, if it is declared contrary to the Constitution, it should be repealed.

[6] In French law, the Superior Council of Magistracy is a constitutional body and a specialized administrative jurisdiction which is, moreover, empowered to rule on priority questions of constitutionality, responsible for judging judges and intervening in the appointments of magistrates.

[7] The magistrates of the bench (classic judges) have the function of say the right to be able to judge and thus render court decisions.

[8] Prosecutors (prosecutors) represent the prosecution (general interest: society) and are responsible for requesting the application of the law before the courts by proposing a sentence to the magistrates.


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