The Secretariat of the Judicial Reform Council
Chapter I. Courts and Judges
There are five types of courts in Japan: the Supreme Court, High Courts, District Courts, Family Courts and Summary Courts.
(1) The Summary Courts handle, in principle, civil cases involving claims which do not exceed 900,000 yen; and criminal cases relating to offences punishable by fines or lighter penalties; and civil conciliations. They are situated in 438 locations nationwide. The cases are handled by a single summary court judge.
(2)The District Courts handle the first instance of most types of civil and criminal cases. They are situated in 50 locations nationwide (one in each of the 47 prefectures and one in the 3 cities of Hakodate, Asahikawa and Kushiro) with branch offices in 203 locations. Most cases are disposed by a single judge, aside from those cases in which it has been decided that hearing and judgement shall be made by a collegiate court or cases where the crimes are punishable by imprisonment with or without labour for a minimum period of not less than one year.
(3) The Family Courts handle family affairs determinations and conciliations as well as juvenile delinquency cases. They are situated in 50 locations nationwide (the same places as the district courts) with branch offices in 203 locations and local offices in 77 locations. The cases are handled by a single judge.
(4) The High Courts handle appeals (Koso-appeals and Kokoku-appeals) filed against judgments rendered by the district courts, family courts or summary courts. The High Courtsare situated in eight locations, namely, Tokyo, Osaka, Nagoya, Hiroshima, Fukuoka, Sendai, Sapporo and Takamatsu with branch offices are situated in six locations. The cases are handled by a collegiate body consisting of three judges.
(5)The Supreme Court is the highest and final court that handles appeals (Jokoku-appeals and special Kokoku-appeals) filed against judgments rendered by the high courts. It is composed of the Chief Justice and 14 Justices with a Grand Bench made up of all 15 Justices and three Petty Benches each made up of 5 Justices. The cases are first assigned to one of the three Petty Benches, and those cases that involve constitutional questions are transferred to the Grand Bench for its inquiry and adjudication.
Judges consist of the following: the Chief Justice of the Supreme Court (1); Justices of the Supreme Court (14), Presidents of High Courts(8), Judges (1,385), Assistant Judges (735) and Summary Court Judges (806).
Assistant Judges are appointed from those who have completed their training at the Legal Training and Research Institute. They can take part in an adjudication as a member of a collegiate body, but are not qualified to sit alone. However, at the present time, a special law authorizes those who have served as an assistant judge for at least five years and who have been nominated by the Supreme Court to sit alone.
Judges are required to have been engaged in practical affairs as an assistant judge, public prosecutor, or practising attorney, etc. for at least 10 years. At present, Judgesare generally appointed from those who have served as an assistant judge for at least 10 years (a career system), but there is also a system where judges are appointed from practising attorneys.
3.Court officials other than judges
In courts, there are officials other than judges, such as Judicial Research Officials, Court Clerks, Family Court Probation Officers, Court Stenographers and Court secretariesprox. 22,000 persons in total).
(1)Judicial Research Officials conduct research concerning the hearing or adjudication of a case under the instruction of the justices and judges in charge. Besides lawyers, experts on industrial property rights or taxes are appointed as Judicial Research Officials, and they are assigned to courts of big cities such as Tokyo or Osaka where there are particularly large number of highly-specialized and complicated cases.
(2)Court Clerks are appointed from court secretaries after they pass the designated examination and receive a designated period of training, consisting of lectures and practicals in law, the drawing up of court records and other documents, as well as on-the-job training. They attend hearings, prepare and file the records and documents of proceedings, facilitate hearing proceedings by making the necessary arrangements before and during the hearing dates, and assist judges in conducting research on laws, ordinances, precedents.
(3)Family Court Probation Officers specialize in various human sciences including psychology, sociology and pedagogy. They engage in specialized work that fulfils the scientific function of the Family Courts, such as fact-finding surveys required for dispute resolution or rehabilitation of a juvenile delinquent as well as adjustment of domestic relationships.
(4)Court Stenographersare in charge of taking stenographicnotes of the court proceedings and other related work.
(5)Court secretaries engage in judicial administration operations, court business, and act as assistants to court clerks and others.
Chapter II.Public Prosecutors and the Public Prosecutors Offices
Public Prosecutorsare independent officials who have the power of prosecution. They investigate crimes, institute public prosecution, carry out hearings, as well as control and supervise the enforcement of adjudication, etc. concerning criminal affairs. In addition, Public Prosecutors engage in administrative processes designated by laws and ordinances to act as representatives to protect public interest, such as becoming the opposing party in an action for acknowledgment of a child.
Public Prosecutorsare vested with exclusive authority to institute public prosecution. The question of whether to indict or not is left to the discretion of the Public Prosecutor, and he/she can refrain from instituting public prosecution even where there are sufficient grounds that facts in question constitute a crime (principle of discretionary prosecution).
Public Prosecutorsconsist of the following: the Prosecutor-General (1, the head of the Supreme Public Prosecutors Office), the Deputy Prosecutor-General (1, who serves in the Supreme Public Prosecutors Office and assists the Prosecutor-General), Superintending Prosecutors (8, the head of the High Public Prosecutors Office),Public Prosecutors (1,294); and Assistant Public Prosecutors (919, stationed at the Local Public Prosecutors Offices) (as of 1999).
2. Public Prosecutor's Assistant Officers
Public Prosecutor's Assistant Officers handle the investigation of crimes, arrests by arrest warrants, administration of collection of fines, etc. under the instructions of public prosecutors.
3.Public Prosecutors Offices
The Public Prosecutors Officesexercise control over the administrative works of public prosecutors. There are four kinds of public prosecutors offices; the Supreme Prosecutors Office; High Public Prosecutors Offices, District Public Prosecutors Offices,and Local Public Prosecutors Offices.
(1) The Local Public Prosecutors Offices are offices that correspond to the summary courts, and are situated in 438 locations nationwide. Public prosecutors and assistant public prosecutors who serve in Local Public Prosecutors Offices mainly handle criminal cases under the jurisdiction of the summary courts.
(2) The District Public Prosecutors Offices are offices that correspond to the district courts and family courts, and are situated in 50 locations nationwide (one in each of the 47 prefectures and one in the 3 cities ofHakodate, Asahikawa and Kushiro) with branch offices in 203 locations. Public prosecutors who serve in District Public Prosecutors Offices mainly handle criminal cases under the jurisdiction of the district courts and family courts.
(3) The High Public Prosecutors Offices are offices that correspond to the High Courts, and are situated in eight locations, namely, Tokyo, Osaka, Nagoya, Hiroshima, Fukuoka, Sendai, Sapporo and Takamatsu with their branch offices situated in six locations. Public prosecutors who serve in the High Public Prosecutors Offices mainly handle appeals (Koso appeals and Kokoku appeals) of criminal cases filed against judgments rendered by district courts, family courts and summary courts.
(4) The Supreme Public Prosecutors Office is an office that corresponds to the Supreme Court. Public prosecutors who serve in the Supreme Public Prosecutors Office mainly handle appeals (Jokoku appeals and special Kokoku appeals) of criminal cases filed against judgments rendered by the high courts.
Chapter III.Practising Attorneys and Bar Associations
Practising Attorneys handle civil and criminal cases, other litigation or non-litigation cases and appeals filed against administrative authorities, as well as other legal practices at the request of the parties concerned, other interested parties or on the commission of government offices. Some of their specific duties are as follows:
- Representing clients in judicial proceedings
- Resolution of various disputes through means other than judicial proceedings (Consultation at Legal Consultation Centres established by Bar Associations or at local government organizations; activities at Arbitration Centres managed by Bar Associations or at the Arbitration Centre for Industrial Property jointly established by the Japan Federation of Bar Association (JFBA) and the Japan Patent Agents Association)
- Drawing up of preventive measures against legal disputes in advance (Acting as attorney for preparation of contracts or wills, offering all kinds of legal advice, and acting as attorney in negotiations etc. aimed at recovering the relationship between the opposing parties)
- In respect of criminal cases, work related to the criminal courts as well as defending suspects in the course of investigation (e.g. On-duty Attorney System)There were 17,268 practising attorneys nationwide as of the end of April 1999. All of them are members of the JFBA and local Bar Associations.
There are 52 local Bar Associations nationwide (3 in Tokyo and others in each jurisdiction of the District Courts), and their federative body is the JFBA. The JFBA supervises operations concerning the status of practising attorneys such as the examination of qualifications, disciplinary punishments, etc., while being involved in the following operations in order to fulfil the obligation of practising attorneys ''to protect fundamental human rights and realize social justice'': demanding remedies or improvements from administrative authorities after conducting investigation based on complaints filed by citizens whose human rights have been infringed; stating opinions concerning legal amenment to legislative body, etc.; providing legal assistance for consumer protection; and protecting the environment from damage such as pollution. In addition, the JFBA has established the Japan Legal Aid Association to offer legal aid in civil cases, criminal cases, and other cases where legal consultation is needed.
Chapter IV.Legal training system
In order to become a judge, public prosecutor, or practising attorney, one must usually pass the bar examination, and after completing the training at the Legal Training and Research Institute, it is necessary to pass final qualifying examination (the so-called second examination).
The bar examination consists of a first and second examination.
The legal training is conducted over a total of one year and six months (two years for legal apprentices who entered the Institute by 1998) consisting of the initial training (3 months), field training (12 months) and final training (3 months). The initial training is conducted at the Legal Training and Research Institute to have the trainees learn the basic knowledge on practical affairs. The field training is conducted at 50 locations nationwide: at Courts, Public Prosecutors Offices and Bar Associations. The objective of this training is to familiarize the trainees with the actual conditions of practical legal affairs and to master the appropriate way, mental attitude, ethic etc. of a lawyer by having them actually take part in disposition of cases under one-to-one instruction of a practitioner. The final training is conducted at the Legal Training and Research Institute to complete the training and make overall preparations.
The number of legal apprentices who entered the Institute totalled approximately 800 persons in fiscal 1999, but the number is expected to reach approximately 1,000 persons from fiscal 2000 onwards.
Chapter V.Judicial proceedings
1. Civil cases/administrative cases
(1)Civil casesCivil cases are comprised of civil litigation cases, civil conciliation cases, civil execution cases, bankruptcy cases, etc.
a) Civil litigation cases
A civil litigation case is a procedure in which one's rights or obligations are determined by judgment in a legal dispute between private individuals. The procedure starts when the plaintiff files a complaint with the court. The complaint must include descriptions of the parties concerned, an outline of the claim (formal adjudication demanded), the reasons for the claim, and attachment of the copies of important documentary evidences. When the complaint is filed, the court designates the date of the first oral proceedings summoning both parties, and sends a copy of the petition to the defendant to provide the defendant with an opportunity to contest the plaintiff's claim.
On the date of the first oral proceedings, both parties appear and conduct oral proceedings in open court. The plaintiff states the petition first, then, the defendant admits or contests the claim, and if contesting, can argue against it. In civil litigation procedures, claims on demands or facts, submission of evidence, etc. are to be made under the authority and responsibility of the parties concerned. Therefore, in cases where the defendant admits the plaintiff's claim or clearly does not dispute it, the court will render judgment without examining the evidence. When the defendant intends to dispute over the plaintiff's claim, he/she will deny the facts claimed by the plaintiff and make his/her own claim. Then, this will be further put to the plaintiff for inquiry whether to admit or not. The disputed facts are confirmed through such repeated assertions of each party's own claims and denial or counter-argument over the opponent's claims, in addition to examination of documentary evidences, etc. Such exchange of claims is usually conducted during the issue reviewing proceedings after the date of the first oral proceedings.When the facts at issue have been confirmed during the issue reviewing proceedings, the court conducts examination of the witnesses or the parties in order to judge whether the facts can be approved or not; the examination will be conducted as intensively as possible. The court is also able to recommend the parties to enter into settlement (resolution by negotiation) at any time.
After these proceedings, the court terminates the oral proceedings and renders judgment. A party dissatisfied with the judgment can further file a Koso appeal or a Jokoku appeal, but when ordinary appeals can no longer be filed, the judgment becomes final.
With regard to civil litigation procedures, the revised Code of Civil Procedure was enacted and enforced on January 1, 1998, in order to further rectify and expedite the procedures and to facilitate the use of civil litigation. (introduction of the procedure for adjustment of issues, establishment of rules on intensive examination of evidence, introduction of small claims litigation procedures in summary courts, etc.)
b) Civil conciliation cases
A civil conciliation is a procedure in which a conciliation committee, composed of a judge and two or more members, mediate between the parties concerned, with the aim of resolving the civil dispute based on the actual circumstances, in a reasonable manner. When the two parties reach an agreement on the dispute resolution, and the contents are entered into the court records, the entry will have the same validity as a final judgment.
c)Civil execution casesWhen the obligor does not voluntarily fulfil his/her obligations specified in the final judgment or the conciliation court records, the creditor can file a motion for compulsory execution, and gain satisfaction by attaching the property of the obligor, selling it compulsorily, and receiving the money for it.
For example, compulsory execution of real estate proceeds as follows:
d) Bankruptcy cases
A bankruptcy case is a procedure for either liquidating all of the property of the obligor or for reconstructing finances with the cooperation of the interested parties in cases where an obligor has failed financially or is likely to fail.
Of these, bankruptcy constitutes the most number of cases; in principle, bankruptcy proceedings start when a creditor or an obligor files a petition to the court. If the court finds the petition to be reasonable, it renders an adjudication of bankruptcy, and unless the property of the obligor is insufficient to cover the costs of the bankruptcy proceedings, it appoints an administrator in bankruptcy. Then, the administrator in bankruptcy liquidates the property of the bankrupt, and converts it into money to distribute to the creditors. Also, in cases where the bankrupt is an individual, there is a system to exempt the bankrupt from the responsibility of paying the remaining debts, after the funds have been distributed through the bankruptcy proceedings(discharge). The court will render a decision to approve the discharge when it receives such a petition by the bankrupt unless there is a reason for rejecting the discharge.
(2) Administrative casesAdministrative cases refer to cases, in which a party dissatisfied with an act conducted by an administrative organization of the state or a local government demands the decision of the court on that dissatisfaction.They include those cases where a party demands cancellation of an imposition of tax ordered by the district director of the tax office or of the revoking of a driver's licence, and where a party demands confirmation of the invalidity of an election. Procedures for administrative litigation are conducted in accordance with the Administrative Case Litigation Law as well as rules of civil litigation procedures.
2. Criminal cases
When a crime occurs, the police generally collect evidence by search, seizure and inspection, and interview the suspects and witnesses. Then, in certain cases, they arrest a suspect, conduct required investigation, and send the case to the public prosecutors.
The public prosecutors either instruct the police to conduct a supplementary investigation, or conduct an investigation by themselves of the cases sent from the police. Since public prosecutors have the authority to investigate all kinds of crimes, they often conduct their own investigation before the police with regard to crimes such as tax evasions, special intellectual crimes, and criminal cases involving civil or commercial affairs, when they deem it necessary.
After completing the investigation, public prosecutors examine the evidence and determine whether or not to indict (institution of public prosecution). The public prosecutors may decide not to indict even where the allegation to the suspect is apparently corroborated, depending on the suspect's personality, age, and personal circumstances, the seriousness and circumstances of the crime, and the situation following the crime.
When the police arrest a suspect, they must refer the suspect to the public prosecutors along with a report (the referral to the public prosecutors office) within 48 hours of the arrest if the suspect needs to be detained.If the suspect needs to be detained for a longer period of time, the public prosecutors may file a request for detention with a judge within 24 hours of receiving the suspect from the police. The detention period is ten days, but if there are any unavoidable causes, the public prosecutors are able to request extension of the period of detention for a further ten days.
Public prosecutors institute public prosecution by filing a written indictment with the court. There are two kinds of public prosecutions:
When a demand for a trial is filed, the court sends a copy of the written indictment to the defendant and summons the defendant to the court on the first public trial date. When it is required, the court appoints an official defence counsel.Hearing proceedings are comprised of an opening procedure, an examination of evidence, a closing argument, a sentencing, etc.
The court asks the opinion of the defence concerning the examination of evidence. Then, the court decides whether or not to accept each piece of evidence according to legal provisions and next, examines the evidence which has been accepted.
After such establishment of facts by the public prosecutor has been completed, establishment of facts by the defence will be conducted.
3. Family affairs cases
Family affairs cases are cases concerning family affairs and consist of determination cases and conciliation cases.
Determination cases consist of cases that can only be dealt with by determination procedures or those that can also be dealt with by conciliation procedures. The former are cases for appointment of a guardian or approval of an adoption, etc.; where a family court needs to intervene from a tutelary standpoint and where there is no opposing party or where voluntary settlement by agreement between the parties concerned is not possible. The latter are cases for the share of expenses arising from marriage, designation of parental power, or the dividing of an inheritance estate, etc., where the matter is expected to be resolved through consultation between the opposing parties.
Conciliation cases can be filed for litigation related to domestic relations and other family affairs in general. Of cases subject to family conciliation, cases for divorce, etc. that can be brought before a district court must first be filed for family conciliation, and not directly as a suit in the district court. This is because it is more desirable to first seek an amicable resolution through mutual compromise between the parties in order to maintain peace within the family.
Since family affairs cases are required to be resolved in an informal atmosphere and in as confidential a manner as possible, they are conducted through closed and relatively summary procedures.
4. Juvenile cases
Juvenile cases involve cases concerning juveniles aged 14 to 20 who have committed a crime (juvenile offender), and those cases concerning juveniles who have violated a criminal law or ordinance, but since they were under 14 at the time, are not considered as offenders under the Penal Code (juvenile charged with illegal behaviour).
Juvenile cases are usually referred from the police, public prosecutors or Child Guidance Centres to family courts, and are filed in by family courts. When a family court accepts a juvenile case, a judge examines the jurisdiction of the case, the age requirement, and the probability of delinquency. If these requirements have been fulfilled, the judge orders Family Court Probation Officers to conduct a social investigation.
The Family Court Probation Officers utilize their expertise in psychology, sociology, pedagogy, etc., and call the juvenile, the guardian, or anyone else concerned to the court office for interview about the circumstances or psychological tests. They also investigate the activities, personal history, personality, environment, etc. of the juvenile by, for example, visiting the juvenile's home and observing the conditions there. After the investigation, officers report to the judge on how much protection the juvenile in question needs. In cases where it is better to detain and protect the juvenile in order to obtain a detailed evaluation of the juvenile's physical and mental condition, the court makes the decision to detain and protect the juvenile in a Juvenile Detention and Classification Home where the character of the juvenile is analyzed by utilizing scientific expertise. The period of protective detention limited to not more than four weeks.
If, as a result of the investigation, a family court considers it neither possible nor appropriate to commit the case for a hearing, it terminates the case by rendering a decision of dismissal without hearing. If it considers it appropriate to start a hearing, it renders a decision of commencement of hearing.
An attendant (often a practising attorney) sometimes participates in the hearing besides the juvenile and the guardian, and the hearing is conducted in a closed manner in order to protect the juvenile's privacy and to avoid any undue emotional distress. In the hearing, an examination is conducted on the presence and the details of the delinquency as well as how much protection the juvenile requires.The judge determines the disposition of the juvenile based on the results of the evaluation or the hearing examination. Such decisions include the following:
Also, some cases are dismissed when the judge considers it unnecessary to take protective measures.
When the juvenile is aged 16 or over, and when the juvenile's past delinquencies, mental and physical maturity, details of the case, etc. indicate that it is appropriate to punish the juvenile by a criminal trial, the case is returned to the public prosecutors. In this case, the public prosecutors must indict the juvenile at a district court or a summary court apart from in certain exceptional cases.
When the family court finds it necessary to determine protective measures, it can commit the juvenile for tentative probationary supervision for around three to four months where family court probation officers directly observe the juvenile.
Chapter VI.Participation of citizens in judicial procedures
Citizens selected from the public participate in some judicial procedures as the following.
1. Members of conciliation committee (except judges)
Members of conciliation committee consists of civil conciliation members: approx. 12,000 persons; family affairs conciliation member, approx. 12,000 persons (approx. 5,400 persons serve as both) and are selected from citizens of impeccable character and deep insight who have broad knowledge and experience. They organize conciliation committee with a judge and engage in peaceful settlement of disputes through conciliation. Conciliation is conducted in various types of disputes concerning civil and domestic affairs, and the experience and knowledge of the members of the committee play an important role in drawing up appropriate settlement proposals in line with the circumstances of the disputes, as well as in convincing the parties concerned based on the proposals.
2. Summary Court Councillors, Family Court Councillors
Summary Court Councillors and Family Court Councillors are selected from citizens of broad knowledge and experience.
Summary Court Councillors (approx. 5,900 persons) give assistance to a summary court judge when the judge recommends a settlement, or attend a hearing examination and give their opinions with regards to civil cases in summary courts.
Family Court Councillors (approx. 6,000 persons) attend or give their opinions when family courts deal with domestic affairs concerning changes in family names, division of estates, etc.
3. Members of the Committees for the Inquest of Prosecution
Members of the Committees for the Inquest of Prosecution are selected by lot from those who have the right to vote for members of the House of Representatives, and they made up the Committee for the Inquest of Prosecution which is 201 in total. These Committees are located nationwide in the district courts and their major branches .
Each Committee for the Inquest of Prosecution, which consists of 11 members, is commissioned to examine whether or not a disposition of non-prosecution made by public prosecutors is appropriate. The chairman of the Committee for the Inquest of Prosecution is elected from among its members, and the Committee examines each matter by surveying records or summoning witnesses as required. When the Committee considers the disposition of non-prosecution as inappropriate as a result of examination, it forms a decision to that effect, prepares a written report of its decision with the reasons, and sends a copy of it to the chief of the district public prosecutors office and others. If the chief of the district public prosecutors office concludes that the public prosecution should be instituted after referring to the written report of the Committee's decision, he/she shall take proceedings for indictment.
4. Volunteer Probation Officers
Volunteer Probation Officers (approx. 49,000 persons) are selected from people within the local communities. This system was non-governmental and local characteristics, and since Volunteer Probation Officers are familiar with the local residents and local geography, they can maintain contact with those under probation. After ascertaining their living conditions of those under probation, they can also provide the guidance required for rehabilitation, harmonize their family relationships, assist in matters concerning education or employment, and give advice for solving problems.
Chapter VII.Alternative Dispute Resolutions (ADRs)
The major dispute resolution system is the judicial system, which is represented by civil litigation, but there are also other systems that are run by a neutral third party.Alternative Dispute Resolutions include;
- public organizations such as the Environmental Disputes Coordination Commission, the Labour Relations Commission, Construction Disputes Committees, the Japan Consumer Information Centre, etc.; and
- private organizations such as the Japan Commercial Arbitration Association, Japan Shipping Exchange, Inc., the Japan Centre for Settlement of Traffic Accidents Disputes, the Japan Credit Counselling Association, etc.
Also, the aforementioned arbitration centres managed by Bar Associations and the Arbitration Centre for Industrial Property jointly established by the Japan Federation of Bar Associations and the Japan Patent Agents Association are classified as ADRs.