The Law of Japan refers to the entirety of the legally achieved norms in Japan.
The early laws of Japan are believed to have been heavily influenced by Chinese law. Little is known about Japanese law prior to the seventh century, when the Ritsury? was developed and codified. Before Chinese characters were adopted and adapted by the Japanese, the Japanese had no known writing system with which to record their history. Chinese characters were known to the Japanese in earlier centuries, but the process of assimilation of these characters into their indigenous language system took place in the third century. This was due to the willingness of the Japanese to borrow aspects of the culture of continental civilisations, which was achieved mainly via adjacent countries such as the Korean kingdoms rather than directly from the Chinese mainland empires.
Two of the most significant systems of human philosophy and religion, Confucianism (China) and Buddhism (India), were officially transplanted in 284-285 and 522 AD respectively, and became deeply acculturated into indigenous Japanese thought and ethics. David and Zweigert and Kotz argue that the old Chinese doctrines of Confucius, which emphasize social/group/community harmony rather than individual interests, have been very influential in the Japanese society, with the consequence that individuals tend to avoid litigation in favour of compromise and conciliation. In addition, it is presently believed that various arts and techniques in many fields of production, such as agriculture, weaving, pottery, building construction, medicine and tanning, were brought to Japan by immigrants by way of the Korean peninsula. These immigrants, wherever they came from, had significant influence on the development of Japan.
It is theorized by some that the flow of immigrants was accelerated by both internal and external circumstances. The external factors were the continuing political instability and turmoil in Korea, as well as the struggle for central hegemony amongst the Chinese dynasties, kingdoms, warlords, invasions and other quarrels. These disturbances produced a large number of refugees who were exiled or forced to escape from their homelands. Immigrants to Japan may have included privileged classes, such as experienced officials and excellent technicians who were hired in the Japanese court, and were included in the official rank system which had been introduced by the immigrants themselves. It is conceivable - but unknown - that other legal institutions were also introduced, although partially rather than systematically, and this was probably the first transplantation of foreign law to Japan.
During these periods, Japanese law was unwritten and immature, and thus was far from comprising any official legal system. Nonetheless, Japanese society could not have functioned without some sort of law, however unofficial. Glimpses of the law regulating people's social lives may be guessed at by considering the few contemporary general descriptions in Chinese historical books. The most noted of these is The Record on the Men of Wa, which was found in the Wei History, describing the Japanese state called Yamatai (or Yamato) ruled by the Queen Himiko in the second and third centuries. According to this account, Japanese indigenous law was based on the clan system, with each clan forming a collective unit of Japanese society. A clan comprised extended families and was controlled by its chief, who protected the rights of the members and enforced their duties with occasional punishments for crimes. The law of the court organised the clan chiefs into an effective power structure, in order to control the whole of society through the clan system. The form of these laws is not clearly known, but they may be characterised as indigenous and unofficial, as official power can rarely be identified.
In this period, a more powerful polity and a more developed legal system than the unofficial clan law of the struggling clan chiefs was required effectively to govern the society as a whole. Yamatai must have been the first central government which succeeded in securing the required power through the leadership of Queen Himiko, who was reputed to be a shaman. This leads to the assertion that Yamatai had its own primitive system of law, perhaps court law, which enabled it to maintain government over competing clan laws. As a result, the whole legal system formed a primitive legal pluralism of court law and clan law. It can also be asserted that this whole legal system was ideologically founded on the indigenous postulate which adhered to the shamanistic religio-political belief in polytheistic gods and which was called kami and later developed into Shintoism.
Two qualifications can be added to these assertions. First, some Korean law must have been transplanted, albeit unsystematically; this can be seen by the rank system in court law and the local customs among settled immigrants. Second, official law was not clearly distinguished from unofficial law; this was due to the lack of written formalities, although court law was gradually emerging into a formal state law as far as central government was concerned. For these reasons, it cannot be denied that a primitive legal pluralism had developed based on court and clan law, partially with Korean law and overwhelmingly with indigenous law. These traits of legal pluralism, however primitive, were the prototype of the Japanese legal system which developed in later periods into more organised legal pluralisms.
The early modernization of Japanese law was primarily based on European civil law systems and, to a lesser extent, American common law elements. At the beginning of the Meiji Era, European legal systems -- especially German and French civil law -- were the primary models for the Japanese legal system.
After the Second World War, the Japanese law underwent major reform under the guidance and direction of Occupation authorities. American law was the strongest influence, at times replacing and at times overlaid onto existing rules and structures. The Constitution, criminal procedure, and labor law, all crucial for the protection of human rights, and corporate law, were substantially revised.
Therefore, the Japanese legal system today is essentially a hybrid of civilian and common law structures, with strong underlying "flavors" from indigenous Japanese and Chinese characteristics. While historical aspects remain active in the present, Japanese law also represents a dynamic system that has undergone major reforms and changes in the past two decades as well.
The present national authorities and legal system are constituted upon the adoption of the Constitution of Japan in 1947. The Constitution contains thirty-three articles relating to human rights and articles providing for the separation of powers vested into three independent bodies: the Legislature, Executive and Judiciary.
The National Diet is the bicameral supreme legislative body of Japan, consisting of the House of Councillors (upper house) and House of Representatives (lower house). Article 41 of the Constitution provides that "the Diet shall be the highest organ of State power, and shall be the sole law-making organ of the State." Statutory law originates from the National Diet, with the approval of the Emperor as a formality. Under the current constitution, the Emperor does not have the power to veto or otherwise refuse to approve a law passed by the Diet.
The judicial system of Japan consists of the Supreme Court, eight high courts and fifty district and family courts. For more serious crimes long terms of confinement or possible death penalty in a penal institution, 448 summary courts have jurisdiction.
The first major legislation enacted in Japan was the Criminal Code of 1880, followed by the Constitution of the Empire of Japan in 1889, the Commercial Code, Criminal Procedure Act and Civil Procedure Act in 1890 and the Civil Code in 1896 and 1898. These were called the roppo (six codes) and the term began to be used to mean the whole of Japan's statute law. The roppo thus included administrative law of both central and local government and international law in the treaties and agreements of the new government under the emperor (in addition to former agreements with the United States and other countries, which had been entered into by the Tokugawa Bakufu).
The Six Codes are now:
Japan, as with other Asian economies such as South Korea and Taiwan, has retained its Commercial Code, but has chosen to enact numerous special laws as well as to amend the Code. Japanese commercial law is also characterized by a relationship with the bureaucracy that is important in determining how those engaged in commerce conduct business.
In the civil law system of Japan, judicial precedent provides non-binding guidance on how laws should be interpreted in practice. Judges seriously consider precedent, especially any pertinent Supreme Court decisions, thus making understanding of precedent essential to practice.
The Civil Code of Japan ( Minp?, 1896) was created in 1896. It was heavily influenced by the first draft of the German Civil Code of 1887, and to a lesser extent the French Civil Code. The code is divided into five books. Those on family and succession retain certain vestiges of the old patriarchal family system that was the basis of Japanese feudalism. It was in these sections that most of the postwar revisions were made. At that time it was considered no longer necessary or desirable to pay such homage to the past, and the sections dealing with family law and succession were brought closer to European civil law. It has had a significant role in the development of civil law in several East Asian nations including South Korea and the Republic of China (Taiwan). It remained substantially unchanged even after the American occupation in 1945 except for the fifth (family law) and sixth sections (inheritance law) which were fully revised during the occupation.
Japanese contract law is based mostly in the Civil Code, which defines the rights and obligations of the parties in general and in certain types of contracts. Kawashima writes that Civil Code theory requires the independent contractor to "complete the work" of construction at the agreed price, and that until then the contractor bears all the expenses. But he notes that pre-war public works contracts had stipulated a possible shifting of a burden from the contractor to the building authority in cases of force majeure, albeit at the building authority's discretion. Kawashima does not spell out that the contractor will be excused from contractual liability by force majeure under art. 415 of the Code, and the novice needs the guiding hand of academic theory to readily draw that implication from the words of the provision. Nor does he spell out that the owner is relieved from making payments under art. 536(1)(a) rule that extends to all synallagmatic (multilateral) contracts, including the independent contractor agreement (?, ukeoi keiyaku). A reader must then know that the contractual term allowing the discretion to vary the effect of those codal provisions, so that the employer (or building authority) may share some of the loss, is acceptable because those provisions are classified by theorists as "optional rules" (?, nin'i h?ki).
The "relational contract theory" developed by Uchida from the start of the 1990s identifies the perceived gap between contemporary social practices and the legal values of "classical" (kotenteki) contract law in Japan. Uchida further argues that the Japanese legal system now reveals communitarian values that deviate from the "modern" (kindaiteki) paradigm of values of individualism and freedom, but which should now be seen as normatively appealing.
Uchida's latest restatement of his theory begins by arguing that contemporary contract law faces problems at two distinct levels: that of contract practice or social reality (standard-form contracts, new "types" of contracts, etc.), and that of contract norms (particularly in the caselaw). Following Dworkin's text Law's Empire very closely (while admitting that this particular philosophy of law may be open to challenge), Uchida assumes that the law retains "integrity" (seigosei) at the level of contract law principles. He then extends six duties derived from the caselaw regarding art. 1(2) of the Civil Code which codifies the principle of good faith (shingi seijitsu no gensoku): damages for breaking off contractual negotiations, duty to disclose information, duty to renegotiate, duty to mitigate, duty not to terminate contractual relations without good cause, and adjustment in awards of damages. These are seen as expressing an underlying "principle of continuity" in contractual relations that is incompatible with classical or modern contract law.
In a 1990 article, Takao Tanase posited that the calculated structuring of governmental and legal processes, not a cultural propensity toward harmonious social relations, accounted for the persistently low litigation rate in that country.
In Japan in 1986, Tanase observed, fewer than 1% of automobile accidents involving death or an injury resulted in Tort litigation. In the United States, the comparable figure was 21.5%. The disparity did not reflect passivity on the part of Japanese accident victims. They commonly made claims based on tort law and they received compensation from negligent drivers and their insurance companies. The litigation rate was low, Tanase said, because Japan provides non-litigious methods of assessing fault, advising victims of their legal rights, determining the appropriate level of compensation, and ensuring payment.
Tanase described how, before a court case is filed in Japan, contested claims generally are resolved by non-litigious dispute resolution mechanisms. These include Traffic Accident Dispute Resolution Centers, which along with courts, provide mediation services. Claimants can also turn to a network of consultation centers operated by governments, the bar association, and insurance companies. The mediation services and advice centers work effectively because the Japanese judiciary works hard at developing clear, detailed rules that guarantee virtually automatic, predictable, moderate compensation for most accident victims. This contrasts with the American tort system, where the legal rules concerning both liability and non-economic damages ("pain and suffering") are stated in general terms, leaving a great deal to the judgment of constantly rotating lay juries--which in turn makes courtroom outcomes variable and difficult to predict.
Tanase's article noted that Japanese insurance companies, compared to their American counterparts, have much lower incentives to avoid full legal compensation. This is because the Ministry of Finance regulates insurance firms' rates, guaranteeing a reasonable return, and also established compulsory loss-sharing arrangements among motor vehicle insurers. This made the insurance system more like a quasi-public social insurance program, Tanase argued, guaranteeing moderate benefits for the injured.
The result was a system that is vastly more efficient and reliable in delivering compensation than the American tort system. Tanase estimated that legal fees comprised only 2% of the total compensation paid to injured persons and that mediating and claims process costs amounted to about 0.2% of the total. In the United States, according to a survey in the late 1980s, 24% of individuals hurt in motor vehicle accidents involving potential defendants hired a lawyer, and the figure went up to 57% for victims with "serious injuries" (fractures, burns, or worse). When the claimant hires a lawyer, the defendant or her insurance company generally employ a lawyer too. In consequence, according to two big studies of motor vehicle accident tort claims (not just lawsuits), payments to lawyers equaled 47% of the total personal injury benefits paid by liability insurers to third-party accident victims. This expense drives up the cost of insurance to the point that huge numbers of drivers are uninsured or under-insured, which means that victims of their negligent driving will get little or nothing from the tort system.
All this makes Japanese bureaucratic legalism look very attractive from a comparative standpoint. But Tanase's 1990 article, foreshadowing his more recent scholarship, questioned whether a legal system that emphasizes bureaucratic smoothness and efficiency, rather than the pursuit of justice and responsiveness to changing values, is all a society should aspire to. The Japanese system, he pointed out, enabled especially aggressive claimants to obtain disproportionately higher compensation. And he feared that the low litigation rate and the emphasis on standardization would result in the stagnation of legal development, since courts were not constantly pushed to consider new arguments and improve the law. Thus, Tanase concluded, "Paradoxically, the very success of the Japanese elite in disarming the legal weaponry of the people inadvertently breeds the seed for its failure: the loss of legitimacy."
Tanase's 1990 article elaborates on these themes, adding an additional threat to the legitimacy of this system. People, he argues, want not only compensation for serious injuries caused by the negligence of others. Just as importantly, they yearn for a more humane, "communitarian" response, "whereby tortfeasors face up to victims and reflect on how they may ease the victims' pain and suffering". Yet one might wonder whether Tanase's concerns, while normatively appealing, were and remain somewhat exaggerated.
Like several other civil law jurisdictions, 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.
The Code of Civil Procedure is the basic law on civil procedure. The reformed Code came into effect in 1998. After an initial complaint to the court, the Court schedules the first session of the oral proceeding. The court clerk serves a summons on the defendant to notify him of the date of the first session, along with a copy of the complaint and documentary evidence. The defendant's lawyer must then file an answer to the complaint. At the first session of the oral proceeding after the filing of the complaint and answer, the judge decides whether the case should proceed under the Preparatory Proceeding. A Preparatory Proceeding is closed to the public and held chiefly to identify the key issues of the dispute. In a complex dispute, there are usually multiple Preparatory Proceedings. The Oral Proceedings are held in open court, either by a single judge or three judges. After the close proceedings, the court renders a judgment on the merits of the case.
Japan's current corporate law is based upon the Commercial Code as amended through December 30, 2005. Shareholder liability rules generally follow American example. Under Japanese law the basic types of companies are:
|7-10 years in prison
3 years at hard labor
3-5 years in prison
5-7 years in prison
1-2 years at hard labor
6-12 months at hard labor
6-12 months in prison
1-2 years in prison
|1-2 years at hard labor
1-2 years in prison
2-3 years in prison
Before the Meiji period (1867-1912), the powers of the Tokugawa shogunate, or the judges they appointed, possessed a large amount of discretion, which often resulted in the abuse of power. Capital punishment was the main measure of dealing with offenders in the criminal justice system. Under feudalism, authorities frequently used the death penalty against political rivals. However, after the Meiji Restoration, as Western culture was introduced, the government established new laws reflecting a gradually modernizing Japanese society. In 1907, criminal law and prison law were passed in an effort to bring Japan into line with Western countries. However, the rights of offenders did not become a main issue in the criminal justice system until the post-war period.
Based on the new Constitution, Criminal Procedure Law was radically changed toward the adoption of an adversarial system. Under this system, the roles of the police, the prosecutor, and the judge changed. Unfortunately, immediately following this innovation, a series of cases resulted in a miscarriage of justice partly because the police were not accustomed to the new system.
Although a jury system came into force in 1939, it was practically never used because of inflexibility in the ongoing criminal justice system at that time. In addition, professional judges have always enjoyed a high level of trust in Japanese society. After the war, the police began to carry guns instead of sabers, according to the advice of the United States.
Arguments were frequently made for reforming the main laws such as the Criminal Law (1907), the Juvenile Law (1947) and the Prisons Law (1907). However, plans for reform were controversial because they addressed delicate issues, such as the introduction of protective measures to Criminal Law, juvenile punishment, or the abolition of the practice of imprisoning defendants in police cells. Japanese society is relatively conservative in its approach to reforms and is generally inclined to oppose them. The government attempts to reform older laws by issuing a series of supplements. However, both the Code of Criminal Law and the Juvenile Law were revised in 1948 after the manifested new constitution of 1946, following the interruption to reform that World War II presented.
In 1926, a governmental advisory commission drafted forty principles to be included in the revision of the penal code that a few years later were used as the basis of a provisional "Revised Penal Code of Japan", published in 1941. While this document itself does not remain as the present form of the penal code of Japan it was largely influential to its construction and has informed the judicial interpretation of the modern code.
The criminal justice system reflects the state's task of protecting individual interests in daily life. Crimes against life, person, and freedom include homicide, assault, bodily injury, forcible rape, indecent assault, and kidnapping. Crimes against property include theft, fraud, robbery, extortion, and embezzlement. The concept of theft has a very broad meaning and includes burglary, shoplifting, and stealing the goods in a car. Stealing bicycles from in front of railway stations is a typical theft according to criminal statistics. Crimes which significantly cause social disorder, like arson, indecent behavior in the public, and gambling, are usually placed in a category of crimes against society. Bribery is considered a crime against the state.
Police, prosecution, court, correction and after-care divisions each publish their own statistics as a yearbook. The Ministry of Justice summarizes their statistics and publishes a book, White Paper on Crime. Because of the nationwide unitary system of these agencies, such a complete portrayal of the crime situation in Japan is possible. The number of reported crimes which follows is derived from the summary of the White Paper on Crime, for 1990.
See: Family law in Japan
The individual relationship between employer and employee:
Basics of the Japanese employment law are established in the Japanese Constitution, which was framed in large part with an eye toward the U.S. Constitution. As such, employment laws in Japan are very similar to those in the U.S., and can be divided into three general categories: labor standards, labor relations, and trade unions. The 'employment' or 'service' contract is recognised under article 623 of the Japanese Civil Code. While the term "labour contract" is not defined under the Labor Standards Act (LSA), to all intents and purposes the courts regard the two as one and the same, and the terms 'labour contract' and "employment contract" as interchangeable. It is through the civil procedure, therefore, that the boundaries of the individual contract have largely been defined by means of a comprehensive body of case law.
Most terms and conditions of employment are provided by the company's work rules, which may be drawn up and varied unilaterally. However, under the LSA, an employer of more than ten persons is required to draw up a set of rules specifying certain conditions of work, including hours, rates of pay, promotion, retirement and dismissal (LSA s. 89). About 42 per cent of the private sector workforce is employed in firms with fewer than ten employees. Consequently, these employers are exempt from the legal obligation to provide formal work rules in respect of their employees. The LSA also requires the employer to consult with the union, if any, or with a person who represents a majority of the employees in drafting the work rules (LSA s. 89). A copy of the work rules must also be submitted to the Labour Standards Office (LSA s. 90).
Under the Japanese Constitution, citizens are guaranteed the right to maintain the minimum standards of a wholesome and cultured life (s. 25). These are to be maintained through the right to work (s. 27) and the right to property (s. 29). The Constitution also guarantees certain work-related rights. Wages, hours and other working conditions must be fixed by law (s. 27).
Under the Industrial Safety and Health Act of 1972 (ISHA), employers bear the major responsibility for the prevention of occupational disease and accident through an integrated scheme of insurance and safety and health management. Furthermore, through the employment contract, employers owe a general duty to take care of their employees' health and safety--and may be sued for damages for negligence in cases where breach of duty or violation of the statutory regulations has occurred.
The national level police organizations are the National Public Safety Commission and the National Police Agency (NPA). Since the commission makes basic policy while the NPA administers police affairs, the commission has control over the NPA. The commission is a governmental body responsible mainly for the administrative supervision of the police and coordination of police administration. It also oversees matters relating to police education, communication, criminal identification, criminal statistics and police equipment. To ensure its independence and neutrality, not even the Prime Minister is empowered to direct and give orders to the NPSC.
The NPA, which is headed by a Director General, maintains Regional Police Bureaus as its local agencies throughout the country. There are seven bureaus in the major cities, excluding Tokyo and the northern island of Hokkaido. Police law stipulates that each prefectural government, which is a local entity, shall have its own Prefectural Police (PP). The PP is supervised by the Prefectural Public Safety Commission, which carries out all police duties within the boundaries of the prefecture. In practice, the PP forces are located in each of the 47 prefectures. The National Police Academy, the National Research Institute of Police Science and the Imperial Guard Headquarters are also organizations affiliated with the NPA. In addition, the Koban system provides local residents with safety and peace through daily contacts of police officers with residents in the area. Originally created by the Japanese police, this system has been recently adopted by countries such as Germany and Singapore. However, its success depends on the human relationship between the police officers and the community people. At times, there is an excess of intervention by police. The Koban system rests on approximately 15,000 police boxes (Hasshusho) and residential police boxes (Chuzaisho) located throughout the country.
The total National Police Agency Budget for the 1990 fiscal year was 198,420 billion yen, of which 41.5% (82,282 billion yen) went toward personnel expenses, 14.5% (28,870 billion yen) went toward equipment, communications, and facilities, 18.2% (36,149 billion yen) were allocated toward other expenses, and 25.8% (51,119 billion yen) went toward subsidies for Prefectural Police. In all, 74.2% of the total (147,301 billion yen) went toward NPA expenses.
Recruited police officers must immediately attend a three-part training course, consisting of preservice, on-the-job, and a comprehensive training course. Those recruited by the PP are enrolled in a 1-year preservice training course at their respective police academies.
Japan recognizes a large number of legal professions, however the number of lawyers is significantly fewer than in the United States. This is due to the fact that Japanese law is based on the Continental European civil law system and a very small number of lawyers (advocates) are complemented by large numbers of civil law notaries and scriveners. Japan introduced a new legal training system in 2004 as part of a justice system reform. The justice system reform has been criticized for failing to incorporate a gender perspective. The major professions, each of which has a separate qualification process, include:
In-house legal advisors at major corporations are almost entirely unregulated, although there has been a trend in the past decade towards attorneys moving in-house.
Japan's court system is divided into four basic tiers, 438 Summary Courts, one District Court in each prefecture, eight High Courts and the Supreme Court. There is also one Family Court tied to each District Court.
Provisions directly governing trial proceedings provide that admissions of testimony must be compelling. There are also rights guaranteeing a speedy and public trial, full opportunity to examine all witnesses, and legal counsel by lawyers employed by the state if the accused cannot afford a private lawyer. In addition, a person cannot incur criminal liability if the act was lawful at the time it was committed, and cannot be subject to conviction for the same crime twice (double jeopardy).
The jury system has, for all practical purposes, been suspended. There are no procedures equivalent to a guilty plea. That is, even if the defendant acknowledges guilt, the prosecutor must submit evidence to establish guilt. Further, since the Japanese procedural system does not include pre-sentence investigations and reports by probation officers, evidentiary data bearing on the sentencing must be presented by the parties to the case, to be supplemented by the court's own inquiries. In this context, the court is the exclusive trier of fact, which consists of the physical evidence and, when that is the case, the confession of the accused as well as any witnesses testimony.
Under the Supreme Public Prosecution Office are 8 higher offices, 50 district offices and 810 local offices. As of 1990, there were about 1,100 prosecutors and 900 assistant public officers, who are all appointed by the central government.
If reasonable grounds to detain a suspect exist, the judge must promptly issue a warrant or order of detention at a maximum of 10 days before prosecution is instituted. Reasonable grounds are determined by three criteria: 1) whether the suspect has a fixed dwelling, 2) whether the suspect might destroy evidence and; 3) whether he might flee the jurisdiction.