Recommendations of the Justice System Reform Council
- For a Justice System to Support Japan in the 21st Century -


June 12, 2001
The Justice System Reform Council





Introduction

Chapter I. Fundamental Philosophy and Directions for Reform of the Justice System
Chapter II. Justice System Responding to Public Expectations

Chapter III. How the Legal Profession Supporting the Justice System Should Be


Chapter IV. Establishment of the Popular Base of the Justice System


Chapter V. Promotion of this Reform of the Justice System


Conclusion



Introduction



The Justice System Reform Council was established under the Cabinet in July 1999, for the purposes of "clarifying the role to be played by justice in Japanese society in the 21st century and examining and deliberating fundamental measures necessary for the realization of a justice system that is easy for the people to utilize, participation by the people in the justice system, achievement of a legal profession as it should be and strengthening the functions thereof, and other reforms of the justice system, as well as improvements in the infrastructure of that system" (Article 2, Paragraph 1 of the Law concerning Establishment of the Justice System Reform Council).
Since its inception, this Council has held over sixty meetings. In proceeding with investigations and deliberations on various measures for reform, this Council has recognized deeply the indispensability of reinforcing the function of justice in the increasingly complex and diversified Japanese society and at the same time always has kept in mind the view that an accessible and user-friendly justice system should be realized that can respond to the expectations of the people and meet their trust.
At the outset of the Council's examinations and deliberations, the Council's understanding of issues and the agenda of matters to be deliberated were arranged. These then were assembled in "The Points at Issue in the Reform of the Justice System" (December 1999). Thereafter, the Council proceeded with examinations and deliberations on each issue set forth in that document. The order was as follows: Based on the recognition that, in order to reinforce and strengthen the justice system, it is indispensable to achieve a legal profession that is rich both in quantity and quality, the Council first considered issues relating to the human base, such as the necessity for reinforcing the human organization of the justice system, including the lawyers who constitute the vast majority of the legal profession, and how the legal training system should be. After a certain level of directionality was achieved on these matters, the Council next conducted discussions regarding various issues concerning the institutional base. Then, in November 2000, the Council arranged the results of its deliberations up to that point, assembled its way of thinking regarding the fundamental direction for consideration on each issue, and published this as an "Interim Report," which it also submitted to the Cabinet. A great number of varying opinions were received from all fields and classes with regard to the "Interim Report." This Council then proceeded with even more in-depth deliberations on each issue, taking into account these opinions. In addition, in parallel to its meetings, the Council received opinions and requests by mail and e-mail, and held public hearings at four locations throughout the country (Tokyo, Osaka, Fukuoka, and Sapporo). In these and other ways, the Council at all times has sought to ensure that the voices of the people, who are the users of the justice system, are reflected in the deliberations. In particular, a large-scale interview survey targeting those involved in civil litigation was undertaken for the first time, enabling us to grasp users' evaluations of the litigation system empirically. Furthermore, in order to grasp present conditions accurately, we conducted fact-finding inspection visits to justice-related organizations in several local areas and heard on-the-spot opinions of people. In addition, we conducted research visits to several foreign countries (the United States, the United Kingdom, Germany, and France) and also exchanged opinions with people concerned in the administration of justice in each of those countries in order to deepen understanding of their justice systems.
Through investigations and deliberations of the type described above, the Council came to acquire conclusions concerning reform of the justice system. Based on Article 2, Paragraph 2 of the Law concerning Establishment of the Justice System Reform Council, the Council hereby submits its "Recommendations" to the Cabinet. This Council feels proud that, in these Recommendations, we have been able to delineate clearly a justice system that will become a foundation supporting Japanese society filled with future possibilities. These Recommendations are the Council's opinion to the Cabinet, but at the same time they are the Council's message to all the people of Japan. We sincerely hope that the people's broad understanding and support can be achieved, that the various reforms the Council proposes in these Recommendations will be strongly promoted, and that the ideal justice system for which we should strive is realized expeditiously.



Chapter I. Fundamental Philosophy and Directions for Reform of the Justice System



Approximately one hundred years have passed since the compilation of the Civil Code and over fifty years since the establishment of the Constitution of Japan. This Council has conducted the investigations and deliberations entrusted to it by the Law concerning Establishment of the Justice System Reform Council. Reflecting on this country's history, which has been filled with trials since the opening of the modern era, this Council has determined that the fundamental task for reform of the justice system is to define clearly "what we must do to transform both the spirit of the law and the rule of law into the flesh and blood of this country, so that they become 'the shape of our country'" and "what is necessary to realize, in the true sense, respect for individuals (Article 13 of the Constitution) and popular sovereignty (Article 1), on which the Constitution of Japan is based."
How must the various mechanisms comprising the justice system and the legal profession, which serves as the bearer of that system, be reformed so as to transform the spirit of the law and the rule of law into the "flesh and blood" of Japan? In other words, how should those mechanisms and the legal profession be reformed so as to make the law (order), which serves as the core of freedom and fairness on which "our country" should be based, broadly penetrate the entire state and all of society and become alive in the people's daily life? How can we deepen the public understanding of the significance of the justice system and set the justice system on a more solid popular base? These are fundamental issues that the Council asked itself.
Japan, which is facing difficult conditions, has been working on various reforms, including political reform, administrative reform, promotion of decentralization, and reforms of the economic structure such as deregulation. What commonly underlies these reforms is the will that each and every person will break out of the consciousness of being a governed object and will become a governing subject, with autonomy and bearing social responsibility, and that the people will participate in building a free and fair society in mutual cooperation and will work to restore rich creativity and vitality to this country. This reform of the justice system aims to tie these various reforms together organically under "the rule of law" that is one of the fundamental concepts on which the Constitution is based. Justice system reform should be positioned as the "final linchpin" of a series of various reforms concerning restructuring of "the shape of our country." The success of the series of reforms, including this justice reform, depends on how we, the people, can take the situation in which we currently stand and exercise our own responsibility for working on the issues with courage and hope. It is essential to reiterate that, unless these reforms succeed, it will be difficult to open a vista for the society of the 21st century.



Part 1. The Shape of Japanese Society in the 21st Century

By realizing simple, efficient, and clear government that is suited to achieving important public functions effectively, the people will build a free and fair society in mutual cooperation as autonomous subjects bearing social responsibility and, on that basis, will contribute to the development of international society.

What is it that has been sought in the various reforms, including political reform, administrative reform, promotion of decentralization, and reform of the economic structure such as deregulation, on which Japan has worked? These reforms have sought to transform the excessive advance-control/adjustment type society to an after-the-fact review/remedy type society and, in promoting decentralization, to reform the bloated administrative system and improve the quality of governing ability (strategicness, integration, mobility) of the political branches (Diet, Cabinet). The efforts to ensure disclosure of administrative information and accountability to the public, to achieve improvements in policy assessment functions, and to achieve transparent administration already are in the process of being realized.
Such various reforms assume as a basic premise the people's transformation from governed objects to governing subjects and at the same time seek to promote such transformation. This is a transformation in which the people will break out of viewing the government as the ruler (the authority) and instead will take heavy responsibility for governance themselves, and in which the government will convert itself into one that responds to such people. At the same time such social structural transformation is taking place, social conditions are changing domestically and internationally every moment, becoming more complicated, sophisticated, diversified and internationalized. In such a society, the people's free, creative activities are expected, and individuals and companies shall develop their social economic living relationships more autonomously and actively.
In the 21st century, connections both within national boundaries and across national boundaries will become stronger in all social fields. Globalization has been making rapid progress with startling information and communications technology innovation, and the "fences" between sovereign countries are lowering. Under such circumstances, actions necessary for Japan to occupy an "honored place in international society" (the Preamble to the Constitution) while exercising accurate and agile governing ability will constantly be called into question. While the international society's eyes looking at our country are likely to become even more severe, whether or not our country can respond to these issues depends not only on the governing ability of our government but also on how full our society is of creativity and vitality, as well as on what values we can transmit to the international society. The international society is not a given order. The series of various reforms mentioned above is related not only to domestic issues but is related also to how actively we can contribute to forming a free and fair international society where people with various values can live together meaningfully.
What we seek to build in this manner in the 21st century is an open society full of creativity and vitality based on respect for individuals, that will contribute to the development of the international society.



Part 2. Expected Role of the Justice System in Japanese Society in the 21st Century

1. Role of the Justice System

The judicial branch, which is based on the concept of the rule of law and places all parties concerned in an equal position and under which an impartial third party makes a decision based on fair legal rules and principles through proper and clear procedures must, along with the political branches, be a pillar to support the "space of the public good" (kokyosei no kukan).

Justice is expected to correct illegal actions and to provide a remedy for injured persons' rights in concrete cases and contests by properly resolving the cases and contests in question through proper interpretation and application of law; to play a role in coping with violations of rules appropriately by properly and promptly realizing the power of punishment through fair procedures; and thereby to maintain and to develop the law. Accordingly, the judicial function has an aspect of realization of public values, and the courts (the judicial branch) shall be positioned as a pillar supporting "the space of the public good" (kokyosei no kukan) in parallel with the Diet and the Cabinet (the political branches), which seek to create order by mapping out policies against the backdrop of majority rule and by fixing and conclusively executing norms in the form of law for the future.
It can be said that the concept of the rule of law, stating that all people are equal under the law, most clearly appears in the fundamental nature of the justice system, that being that all people are treated equally and an impartial third party makes a decision based on fair and clear legal rules and principles through fair procedures. This means that the voice of only one person, if it is sincere and righteous, should be listened to seriously. In turn, for each and every one of the Japanese people, this is a matter that relates to the dignity and pride of living one's precious life as an individual person, which directly ties to the principle of the respect for individuals which is the most basic principle of the Constitution.
When likened to the human body, if the political branches constitute the heart and arteries, the judicial branch shall be said to be the veins. The series of reforms mentioned above, such as political reform and administrative reform, are, so to speak, an effort to restore and strengthen the functions to make blood flow swiftly by removing extraneous crudescence in the heart and arteries. According to this metaphor, justice reform shall be considered to be aiming at harmonizing the body and improving its health by expanding and strengthening the scale and function of the justice system as part of the what the "shape of our country" should be in the 21st century, with fundamental reflection on whether or not the existing veins were excessively small.
The Constitution established the judiciary as one of the branches of the tripartite separation of powers, or the system of checks and balances, along with the Diet and the Cabinet. To ensure that the judiciary would be suited to meet that role, the Constitution provided as part of the judicial power not only jurisdiction over civil cases and criminal cases but also jurisdiction over administrative litigation, and further granted the judiciary the authority to review the constitutionality of laws (Article 81). Through the exercise of this authority, the judiciary was expected to serve as the ultimate guardian of the rights and freedoms of the people and to maintain the legal order with the Constitution at the top. There are a considerable number of evaluations suggesting that the judiciary has not necessarily met these expectations sufficiently. When there is a need to expand and strengthen both the scale and the function of the veins, as described above, it must be emphasized that the need to reinforce and strengthen the judicial-check function vis-a-vis legislation and administration is included therein.
The administrative litigation system needs to be reviewed from the standpoint of reinforcing the judicial-check function vis-a-vis the administration and securing the rights and freedoms of the people more effectively. This is also important to enable the effective exercise of the essential functions of the administrative branch, namely, that the Cabinet actively tackles various domestic and foreign issues strategically, in an integrated manner and with mobility, while blocking improper political pressure on the individual administrative processes and securing strict enforcement of the law.
In the case of the system for reviewing the constitutionality of laws, if there are ways in which that system has not always functioned adequately, various backgrounds and circumstances may be thinkable as reasons for that. Among others, it may be pointed out that the Supreme Court, which is the court of last resort for exercising the power of constitutional review, must handle an extremely large number of appeals, so it may be difficult for that court to adopt a stance for dealing with constitutional questions. This is different, for example, from the situation of the U.S. Supreme Court. The following matters are worth considering: to what degree the number of appeals can be narrowed, and whether or not it is possible, by reviewing the relationship between the Grand Bench and the Petty Benches, to allow the Grand Bench to take the lead and devote its efforts to vital cases such as those involving constitutional questions. Also, there is probably room for further efforts with regard to the manner in which justices of the Supreme Court are appointed.
At any rate, the role of the justice system will become dramatically more important in the Japanese society of the 21st century. In order for the people to easily secure and realize their own rights and interests, and in order to prevent those in a weak position from suffering unfair disadvantage in connection with the abolition or deregulation of advance control, a system must be coordinated to properly and promptly resolve various disputes between the people based on fair and clear legal rules. The justice system in the 21st century must be one that establishes predictable, highly clear and fair rules through the resolution of disputes and effectively checks violation of the rules. At the same time, it must be one that affords a proper and prompt remedy to people whose rights or freedoms have been infringed. This shall also lead to reinforcement of the ability to respond to globalization by building up the underpinnings of Japanese society.



2. Role of the Legal Profession

For the people to actively form, maintain and develop diversified social connections as autonomous beings, the legal profession which directly engages in the administration of justice must provide legal services in response to the specific living conditions of each individual and to his or her needs as the so-called "doctors for the people's social lives."

It is people who manage a system. In connection with increasing the role of the justice system in Japanese society in the 21st century as discussed above, the role of the legal profession (lawyers, public prosecutors, judges), which serves as the bearer of the justice system, must become more diversified, broader and heavier. For the judicial branch to support, along with the political branches, "the space of the public good," and to establish a flourishing, self-responsible society where the rule of law extends everywhere, it is indispensable that the role of the legal profession, as the profession directly engaged in the administration of justice, become markedly greater.
For the people to autonomously form social connections as self-determinative beings, it is indispensable for them to receive the cooperation of the legal profession, which can provide legal services in response to the specific living conditions of each individual and his or her needs. As in the case of medical doctors who are indispensable for people's health-care services, the legal profession should play the role of the so-called "doctors for the people's social lives."
There will be dramatically increased expectations that the legal profession will help make various activities of individuals and corporations be conducted in line with legal rules by providing proper legal services, including legal advice, on individual issues relating to those activities, and will prevent disputes from occurring and, in the event disputes have occurred, will seek to achieve proper, prompt, and effective resolutions and remedies for those disputes based on legal rules.
Also, if our country seeks to live as a trade and science technology-oriented country in the international society of the 21st century, the importance of the legal profession's role in various aspects of forming and administering domestic and foreign rules is further strongly recognized. Above all, accurate response to fields that require advanced expertise, including increasingly important protection of intellectual property rights, is demanded, as is continuous promotion of support to developing Asian countries for coordination of law as a contribution to the international society.
In order to achieve the above roles in the 21st century, the existence of a larger stock of legal professionals sharing the concept of the rule of law, and their wide range of activities in various fields of a society based on a spirit of mutual reliance and unity, are strongly demanded.



3. Role of the People

The people, who are the governing subjects and the subjects of rights, must participate in the administration of justice autonomously and meaningfully, must make efforts to form and maintain places for rich communication with the legal profession, and must themselves realize and support the justice system for the people.

For justice to achieve the role demanded of it satisfactorily, broad popular support and understanding are necessary. With the improvement of the quality of the governing capability of the political branches through political reform and administrative reform, the political branches' responsibility for accountability to the people becomes heavier. In the same way, the judicial branch must establish a popular base by meeting the demand for accountability to the people, while paying heed to judicial independence. Justice can play its role fully only if its activities are easily seen, understood, and worthy of reliance by the people.
For justice to secure a popular base, the legal profession must have won the public trust. The source of this trust lies in the legal profession's consciously, and with an open attitude, constructing a desirable system of justice that responds to public expectations. The legal profession must willingly carry this out while being aware of both the importance of accountability to the people and the high responsibility for establishing a better system of justice for the people. For that purpose, the legal profession must contribute to the people's autonomous activities to form a better society by securing rich communication with the people as a profession while constantly enhancing its own quality. On the other hand, it is incumbent on the people that they support justice by participating in the administration of justice autonomously and meaningfully and by making efforts to form and maintain places for rich communication with the legal profession. Ultimately, there is no foundation supporting the development of Japan in the 21st century other than creative cooperation, free development of personality and a sense of responsibility deeply based on sympathy with others, by each and every person, each of whom is a governing subject and a subject of rights. This should be clearly defined as applying to the relationship to the justice system, as well.



Part 3. Shape of the Justice System in the 21st Century

1. Three Pillars of Justice System Reform
Considering that reinforcing and strengthening the function of the justice system is a vital matter, given the increasing importance of the role of the justice system in Japan in this era of greatly changing domestic and foreign socioeconomic conditions, the various reforms that the Council proposes in these Recommendations should be carried out for the purpose of enabling the Japanese justice system to play its role fully by taking various measures with the following three points as basic policies, and thereby to contribute to forming a free and fair society.
First, in order to achieve "a justice system that meets public expectations," the justice system shall be made easier to use, easier to understand, and more reliable.
Second, by reforming "the legal profession supporting the justice system," a legal profession that as a profession is rich both in quality and quantity shall be secured.
Third, for "establishment of the popular base," public trust in the justice system shall be enhanced by introducing a system in which the people participate in legal proceedings and through other measures.

2. Shape of the Justice System in the 21st Century

(1) Construction of a Justice System Responding to Public Expectations (Coordination of the Institutional Base)

In order to make the justice system easier to use, easier to understand and more reliable, the people's access to the justice system shall be expanded, and a system that enables the resolving of cases effectively shall be constructed by conducting fairer, more proper and more prompt proceedings.

For civil justice, the system must be reformed so as to enable the people to easily access the justice system as users and to obtain proper, prompt and effective remedies in response to diversified needs.
First of all, with regard to litigation, the aim is to reduce the current duration of proceedings by about half by enhancing the content of proceedings, with the intention that users can obtain proper, prompt and effective remedies. For that purpose, planned proceedings shall be promoted by making it compulsory to confer to set a proceeding plan, and the process to collect evidence shall be expanded. In addition, for cases requiring specialized knowledge, the court-appointed expert witness system shall be improved and a new system in which experts participate in the legal proceedings shall be introduced. In particular, for lawsuits relating to intellectual property rights, the processing system of specialized departments at both the Tokyo and Osaka District Courts shall be further reinforced so that those departments function substantially as patent courts. Measures to reinforce response, such as introduction of labor conciliation, shall also be taken for labor-related cases, which have been increasing remarkably in number, mainly for individual labor-management related cases. The functions of the family court and the summary court shall be reinforced by readjusting their jurisdiction, etc. Moreover, in order to secure the effective realization of rights, new measures to improve the civil execution system shall be introduced. In addition, in order to expand public access to justice, efforts should be made to reduce the costs that users bear, to expand civil legal aid, and to reinforce access points that comprehensively offer information on the justice system. Moreover, efforts should be made to expand and vitalize alternative dispute resolution (ADR), with the intention that the people can choose from among diversified dispute resolution methods according to individual needs.
Furthermore, based on the recognition that the role to be played by the justice system takes on even greater importance in the context of a system of separation of powers, or checks and balances, it is necessary to aim at reinforcing the judicial-check function vis-a-vis the administration.
Concerning criminal justice, in the context of a new era and new society, reforms are necessary to ensure a system that is able to fulfill its mission (to find out the truth of the cases pursuant to due process of law and to realize the penal authority properly and promptly) even more properly while obtaining the trust of the people.
First of all, in order to further reflect the people's sturdy social common sense on the content of trials, a new system shall be introduced for certain serious cases, under which the general public will participate in deciding cases together with judges. Also, in order to reinforce and speed up trials, from the viewpoint of reinforcing the arrangement of the issues and expanding the disclosure of evidence that contributes to that arrangement, a new preparatory proceeding shall be established and clearer rules relating to disclosure of evidence shall be established, and the holding of trial sessions on consecutive days shall be made the basic principle. In addition, from the standpoint of securing fairness of criminal justice, in order to effectively secure the suspects' and defendants' rights to receive assistance of defense counsel, the public defense counsel system for these people shall be established. Concerning how the institution of public prosecution should be, it is incumbent on public prosecutors to exercise their authority in an even more proper manner; and, at the same time, a system of giving legally binding force to specific resolutions by the Inquests of Prosecution shall be introduced so as to reflect popular will more directly. Furthermore, in order to ensure that questioning of suspects is conducted in a proper manner, a system shall be introduced establishing a duty to make written records of conditions of the questioning.



(2) How the Legal Profession Supporting the Justice System Should Be (Expansion of the Human Base)

A legal profession shall be obtained that not only has highly developed professional legal knowledge but also has acquired strong legal ethics based on wide cultural knowledge and rich humanity and that forms a broad class and plays an active role in various fields of society.

Accompanying future social and economic development, demand for the legal profession is anticipated to increase quantitatively as well as to become further diversified and more sophisticated qualitatively. Considering the current legal profession in Japan, it can hardly be regarded as being capable of sufficiently responding to the legal demands of the society in any respect. Therefore, in order to realize the above various institutional reforms in a fruitful manner, it is indispensable to widely expand the quality and quantity of the legal professionals who will play a crucial role as those who directly bear those reforms.
With regard to the number of legal professionals, the aim is to achieve 1,500 successful applicants for the existing national bar examination in 2004, and, while keeping watch over the progress of establishment of the new legal training system, to increase the number of successful applicants for a new national bar examination to 3,000 per year in about 2010.
With regard to the system for legal training, in order to secure legal professionals with suitable quality to undertake the administration of justice in the 21st century, the system shall not consist of selection based upon the "single point" of the national bar examination. Rather, a system for legal training shall be established that consists of a "process" that organically connects legal education, the national bar examination, and apprenticeship training. As the core of the system, graduate schools specialized in training of legal professionals (hereinafter referred to as "law schools") shall be established.
With regard to the lawyer system, public access to lawyers shall be expanded by strengthening the work structure of lawyers, including reinforcing legal consultation activities, making lawyers' fees clearer and more rational, and strengthening expertise, taking into account the needs of society. In addition, measures shall be taken to drive home and improve legal ethics, such as making disciplinary procedures clearer, prompter and more effective.
With regard to the public prosecutor system, from the standpoint of securing public trust in the strictness and fairness of public prosecution, measures to reform the consciousness of public prosecutors shall be taken, such as thoroughgoing review of the human resources and education systems. This includes having public prosecutors spend time working at places where they can learn the sense of the general public. Also, a system shall be established that can reflect the voices of the people with regard to the administration of the public prosecutors offices.
With regard to the judge system, measures shall be taken to diversify sources of supply for judges, such as promotion of appointment of lawyers as judges and reform of the assistant judge system, which includes establishment of a system to institutionally secure that assistant judges accumulate diverse experience as legal professionals in various positions other than as judges. In addition, a system shall be established in which organizations reflecting public views participate in the process of appointing judges and a system shall be established to secure transparency and objectivity of personnel evaluation.



(3) Establishment of the Popular Base

The people shall deepen their understanding of the justice system through various forms of involvement including participation in certain legal proceedings, and shall support the justice system.

In order to establish a stronger popular base for the justice system, measures shall be taken to expand participation of the people in the justice system.
As a new system for popular participation in litigation proceedings which constitute the core of the justice system, a new system shall be introduced for a portion of criminal cases. Under this new system, the general public can work in cooperation with judges, sharing responsibility for and becoming involved in deciding the cases autonomously and meaningfully. In the civil procedure, for cases that require specialized knowledge, a system shall be introduced in which experts become involved in all or part of trials and support judges. In addition, the existing participation systems shall be expanded, such as by giving legally binding force to certain resolutions by Inquests of Prosecution and by expanding the court councilor system as a part of reinforcement of the function of the family court accompanying transfer of jurisdiction for actions related to personal status. Furthermore, a system to reflect public views on procedures for appointment of judges and a scheme to further reflect public views on administration of the courts, the public prosecutors offices and the bar associations shall be introduced. Coordination of conditions to make such participation in the administration of justice effective shall be promoted, such as realization of an easily understandable system of justice including adjustment of the basic laws, reinforcement of legal education and promotion of information disclosure relating to the administration of justice.



3. For Realization of the Justice System in the 21st Century

In order to realize this sort of justice system for the 21st century, this Council recommends such specific measures for the reform as described in detail below, on the basis of the investigations and deliberations conducted so far, dividing those specific measures into the three categories of "Justice System Meeting Public Expectations," "How the Legal Profession Supporting the Justice System Should Be" and "Establishment of the Popular Base of the Justice System."
These wide-ranging reforms of the justice system mutually and organically relate to one another, and their full-scale, unified realization and execution is necessary. In addition, as described at the outset of these Recommendations, the justice system reform itself organically relates to a series of reforms such as political reform, administrative reform, promotion of decentralization, and deregulation, which have already been proceeded with. In fact, the necessity of thoroughgoing reform of the justice system has been preached in those reforms. For example, the final report of the Administrative Reform Council (December 3, 1997), which led to the reorganization of the central government ministries and agencies, sets forth as "a matter to be considered in reinforcing the functions of the Cabinet" that proper attention must be paid to the division of powers, or the system of checks and balances, and that "it is necessary to take active measures to reinforce and develop 'the rule of law.'" That report also states:
This "rule of law" constitutes an essential base for promoting deregulation, aiming at abolishing unclear advance administrative control and converting to an after-the-fact review/remedy type society, and by pursuing prosperity with the trust of the international society. The government must also quickly start full-scale study for coordination of both the human and the institutional bases for the justice system.
In a reflection of the significance and importance of this reform of the justice system, the entire Cabinet is expected to join together to earnestly work for the prompt and effective realization of the reforms set forth herein. In order to realize these reforms, securing the human and budgetary base needed for the reforms is indispensable, and doing so will involve a considerable burden given the current difficult financial circumstances. Still, the government is strongly requested to take daring and active measures based on plans that can truly realize these reforms, without being imprisoned by past history.



Chapter II. Justice System Responding to Public Expectations



What the people expect from the justice system is, in a word, a system that is more accessible and easier to use; proper, prompt as well as effective judicial redress in response to various needs; and the execution of accurate, proper and prompt apprehension and punishment of offenders through fair procedures so that people can live safely. In the case of both civil justice and criminal justice, it is necessary to strongly promote the coordination, based on the concept of the rule of law, of an institutional base for the justice system responding to such public expectations, coupled with both the expansion of the human base (Chapter III, "How the Legal Profession Supporting the Justice System Should Be," below) and the establishment of the popular base (Chapter IV below) discussed later, while reflecting the current environment of Japan in the 21st century.

Part 1. Reform of the Civil Justice System

First of all, the following issues need to be addressed in relation to the civil justice system from the standpoint of proper, prompt as well as effective judicial redress: reinforcement and speeding up of civil trials; reinforcement of response to cases requiring specialized knowledge such as litigation relating to intellectual property rights, which is expected to continue to increase even further, and labor-related cases; reinforcement of the functions of the family courts and summary courts; and reinforcement of the civil execution system for the sure effectuation of results of trials.
In addition, access to the courts is located at the core of the issue of access to justice, coupled with access to lawyers, which will be discussed later. Based on the Code of Civil Procedure which was thoroughly revised as Law No. 109 of 1996, which took effect in 1998 (hereinafter referred to as "the new Code of Civil Procedure"), efforts have been made to provide easier access to the courts through the introduction of small-claims litigation and other measures. However, considerable issues still need to be addressed to expand access to the courts, such as increasing the convenience of the courts, including reducing the fees that users bear, expanding the legal aid system, and reinforcing consultation services for users, and to make redress for injury more effective.
In order to make it possible to select various dispute resolution methods in response to needs, it is also necessary to aim at the expansion and vitalization of the field of alternative dispute resolution (ADR).
Furthermore, based on the recognition that the role to be played by the justice system takes on even greater importance in the context of a system of separation of powers, or checks and balances, it is necessary to aim at reinforcing the judicial-check function vis-a-vis the administration.



1. Reinforcement and Speeding Up of Civil Justice

The following measures should be carried out, aiming to reduce the duration of proceedings for civil cases by about half:
In principle, for all cases, conferences to establish a proceeding plan should be made compulsory, and planned proceedings should be further promoted.
Methods for the parties concerned to collect evidence at an early stage, including the period before instituting a suit, should be expanded.

With regard to civil trials, the new Code of Civil Procedure was enacted to make procedures user-friendly and easily understandable for the people, and efforts were made to provide easy access to the courts, such as through the special procedure for small-claims litigation. Various efforts were also made to reinforce and speed up proceedings. Examples of such measures to reinforce and speed up proceedings include coordination of procedures to arrange the contested issues and evidence, the establishment of new regulations for concentrated examination of evidence, the reform of the explanation (shakumei) system, the conversion from the submission at-any-time principle to the timely submission principle, and the expansion of procedures for collecting evidence. (Examples of the expanded procedures for collection of evidence are expansion of the order to produce documents and introduction of a system for interrogatories to the parties concerned. Furthermore, a draft of the revised law concerning orders to produce official documents has already been submitted to the 151st Diet session (in 2001).) Also, the Rules of Civil Procedure newly establish sessions for conferring on progress and also make it obligatory to confer to set a proceeding plan for large-scale litigation.
As a result of these steps, the duration of proceedings in civil procedure on the whole has been decreasing. The average duration of proceedings for all first instance civil cases at district courts is 9.2 months (as of 1999). However, for cases in which examination of personal evidence, such as examination of a witness, has been conducted because of a dispute over the facts of the case or for other reasons, the average duration of proceedings rises to 20.5 months (as of 1999).
In order to respond to public expectations, the following measures should be carried out, aiming at reducing the proceeding period (20.5 months in 1999) of civil cases involving examination of personal evidence by about half by further reinforcement of proceedings.

(1) Promotion of Planned Proceedings
Planned proceedings should be further promoted in the following manner: In principle, for all cases, conferring to establish a proceeding plan should be made compulsory. At an early stage in the proceedings, a proceeding plan should be fixed, based upon conferrals by the court and by both parties, containing an estimated time for the conclusion of the proceedings. Proceedings then will be carried out in line with that plan.

(2) Expansion of Procedures for the Collection of Evidence
Methods for parties concerned to collect evidence at an early stage, including the period before instituting a suit, should be expanded. For this purpose, new measures should be studied and introduced, including a system of independent examination of evidence such as the one under German law (a system under which, as long as there is a legal interest, it is possible to demand "court-ordered expert opinion in writing" for specific matters before institution of a lawsuit without the requirement of a purpose for preservation of evidence) and a system that enables the use of specific methods of collecting evidence when one party has sent advance notice of the intention to institute a suit. At the time of adoption, it is necessary to pay attention both to securing the rights of those who hold evidence and to the danger of adverse effects through abuse of the new measures.

(3) Expansion of the Human Base
In order to reduce the duration of proceedings for civil cases by about half while aiming at the reinforcement of proceedings, it is necessary to shorten the intervals between trial dates by expanding the human base of the legal profession. For that purpose, the personnel system of the courts should be reinforced by significantly increasing the number of judges and staff connected to the courts, while the work structure of lawyers should be reinforced by greatly increasing the number of lawyers and by promoting the incorporation of law firms and the use of joint law firms.

Whether or not the district courts should introduce, in addition to ordinary legal proceedings, a trial procedure that enables simple, prompt processing, based on the amount in controversy, should be studied continuously as a future problem from the standpoint of increasing effectiveness as a whole by concentrating the limited human and material resources of the courts on complicated and sophisticated cases as well as by processing simple litigation promptly.



2. Strengthening Handling of Cases Requiring Specialized Knowledge

In addition to the measures related to reinforcement and speeding up of civil trials, the following measures should be carried out, with the aim of reducing the duration of proceedings for cases requiring specialized knowledge by about half:
While paying due regard to securing the neutrality and fairness of the courts, study should be given, with individualized attention to the nature of the expertise involved for each category of cases, to the manner in which new systems for expert participation in litigation should be introduced, in which non-lawyer experts in each specialized field become involved in all or part of trials, from the standpoint of their own specialized expertise, as expert commissioners to support judges (expert commissioner [senmon iin] systems).
The court-appointed expert witness system should be improved.
Technical expertise of the legal profession should be strengthened.

With scientific technological innovation and the complication and internationalization of social and economic relationships, among civil disputes, the number of litigation cases requiring specialized knowledge (cases related to intellectual property rights, medical affairs, construction, financial affairs, etc.) has been continuously increasing. If suitable cooperation by experts cannot be obtained at civil actions related to these disputes, not only is it impossible to come to a proper judgment but procedures frequently are delayed. In the case of litigation related to medical affairs (ordinary first instance civil cases), the average duration of proceedings per case is 34.6 months (as of 1999, approximate figure), which is extremely long compared to other cases. It is an important and urgent task for the current civil justice system to enable the people to receive effective judicial redress by securing experts' involvement in dispute resolution procedures in various forms and by coping with these cases based on thorough proceedings and prompt procedures.
For that purpose, in addition to promoting planned proceedings and expanding methods for collecting evidence, which were discussed in connection with the reinforcement and speeding up of civil trials, the following measures should be carried out, with the aim of reducing the duration of proceedings (e.g., 34.6 months for litigation cases related to medical affairs as of 1999) for litigation cases requiring specialized knowledge by about half. In addition to smoothly carrying out these measures, cooperation and collaboration between related organizations (including related ministries and agencies and the courts) are indispensable for realizing the prevention of disputes related to medical affairs and construction and for the proper and prompt resolution of cases. In the future, further reinforcement of such measures is desirable.

(1) Introduction of the Expert Commissioner System
Under the current law, there are no measures to utilize experts in legal proceedings other than the court-appointed expert witness system and the court research clerk system, so forms of involvement of experts are limited. In the case of litigation requiring specialized knowledge, it is desirable to obtain the involvement of experts from an early stage of the proceedings. Therefore, while paying due regard to securing the neutrality and fairness of the courts (by, for example, assuring the transparency of procedures) in matters such as the selection methods and the manner of their participation in proceedings, study should be given, with individualized attention to the various kinds of expertise involved, to how new systems for expert participation in litigation should be introduced (expert commissioner [senmon iin] systems; to be more specific, providing support in arranging the contested issues, taking charge of and assisting in reconciliation, conducting research and providing opinions concerning issues requiring specialized knowledge, participating in the examination of evidence, etc.), in which non-lawyer experts in each specialized field become involved in all or part of trials, from the standpoint of their own specialized expertise, as expert commissioners to support judges.
With respect to cases related to medical affairs, it is necessary to study if and how the expert commissioner system should be introduced, carefully bearing in mind the fact that problems have been pointed out regarding whether it is possible to secure experts who can be considered fair and neutral from the standpoint of both patient and doctor, and whether expert commissioners might exert some hidden influence on the process whereby judges form their decisions.

(2) Improvement of the Court-Appointed Expert Witness System
In order to aim at the reinforcement and speeding up of litigation requiring specialized knowledge, the utilization of the traditional court-appointed expert witness system is indispensable. However, it has been considered difficult as a practical matter to find suitable expert witnesses for cases and to have them agree to give their expert opinion. Also, even if a court-appointed expert witness agrees to give an expert opinion, its preparation takes a long time, often causing delays in litigation. Accordingly, the court-appointed expert witness system should be improved through measures including making the process of selecting a court-appointed expert witness smoother by improving the list of names of candidates, coordinating with organizations of experts, and newly establishing commissions for litigation related to medical affairs and for litigation related to construction, preparations for which are currently being undertaken by the Supreme Court.

(3) Strengthening the Technical Expertise of the Legal Profession
In addition to the utilization of experts discussed above, the technical expertise of the legal profession should be strengthened. To be more specific, the incorporation of law firms and the use of joint law firms, expansion of specialized departments and concentrated departments at the courts, reform of the legal training system, and reinforcement of continuing education of the legal profession should be promoted.



3. Strengthening of Comprehensive Response to Cases Related to Intellectual Property Rights

In addition to measures related to the reinforcement and speeding up of civil trials, the following measures should be carried out with the aim of reducing the duration of proceedings for cases related to intellectual property rights by about half:
  • In order to make the specialized departments at both Tokyo and Osaka District Courts function substantially as "patent courts," the specialized processing system of these courts should be further reinforced by concentration of both judges with strengthened expertise and court research officials who are technical experts, the introduction of the expert commissioner system, and the granting to the Tokyo and Osaka District Courts of exclusive jurisdiction for cases related to patent rights, utility model rights, etc.
  • The right of representation for infringement proceedings concerning patent rights, etc., should be extended to patent attorneys, after taking highly reliable measures to assure their ability.
  • The technical expertise of the legal profession should be strengthened.
    Alternative dispute resolution by such bodies as the Japan Arbitration Center for Intellectual Property and the Japan Patent Office (Hantei system: a system of providing appraisals on the technical scope of patented inventions) should be expanded and vitalized, and measures should be taken to coordinate such ADR activities with litigation.

    • (1) Necessity of Strengthening Comprehensive Response
    As described above, it is an important and urgent task of the current civil justice system to cope with cases requiring specialized knowledge based on thorough proceedings and prompt procedures. In particular, other countries throughout the world are positioning reinforcement and speeding up of litigation related to intellectual property rights as part of their international strategy relating to intellectual property, and have been taking various measures to promote these policies. In view of this trend, Japan also needs to position this issue as one of the most important issues on which the whole government should work.
    For some time, in reflection of the specialized nature of cases related to intellectual property rights, the Tokyo and Osaka District Courts have been coordinating a specialized processing system by setting up respective specialized departments and deploying to those departments judges acquainted with the processing of such cases and court research officials who are technical experts. With the recent increase of litigation related to intellectual property rights (the number of newly filed ordinary first instance IP civil cases at the district courts increased from 331 in 1989 to 642 in 1999), those courts have been further expanding their specialized processing systems. (Furthermore, the Tokyo and Osaka High Courts also have been utilizing the specialized processing system for appeals.) As a result of such reinforcement of systems of the courts, the average duration of proceedings has been declining (considering completed ordinary first instance IP civil cases, the average proceeding period declined from 29.2 months in 1989 to 23.1 months in 1999). In particular, the average duration of proceedings at the Tokyo and Osaka District Courts, which have been expanding the specialized processing system, are shorter than those of other district courts, and the declining trends are marked. (The promotion of specialization for lawyers in Tokyo and Osaka may be another factor behind these declines.)
    In addition, as a result of the fact that, among cases related to intellectual property rights, the new Code of Civil Procedure granted the Tokyo and Osaka District Courts concurrent jurisdiction for cases related to patent rights, utility model rights, etc., the majority of newly filed cases in those categories are being submitted to those district courts. (In the case of patent rights, the percentage of cases filed in those two district courts increased from 66.9% before enforcement of the new Code of Civil Procedure in 1997 to 84.3% in 1999 and to 87.5% in 2000. For utility model rights, the percentage increased from 47.1% in 1997 to 63.9% in 1999 and to 81.4% in 2000. All figures for 2000 are approximate, however.)
    With respect to patent infringement disputes, in order to expand redress for infringement of rights, reform of the compensation for damage system, including review of the method for calculating the amount of damage caused by infringement and the introduction of the calculation appraiser system, was undertaken through reforms to the Patent Law in 1998 and 1999. Moreover, in order to facilitate proof of infringement, measures such as expansion of the order to produce documents and establishment of a new special provision for active denial (sekkyoku hinin) have just been taken. These steps notwithstanding, it has been pointed out that it is still difficult for a right holder to identify the target goods or methods of the opposing party and to prove there has been an infringement. Therefore, the necessity of further improvement of the procedure for collecting evidence has also been pointed out.

    (2) Concrete Measures to Strengthen Comprehensive Response
    Based on the foregoing, in order to further reinforce and speed up litigation related to intellectual property rights, in addition to reinforcing the institutional base for litigation procedures, the human base for such litigation should be strengthened, through measures such as the coordination and reinforcement of the work structure of the courts as well as the training and strengthening of the human resources of specialized judges, lawyers, etc.
    To be more specific, in addition to the promotion of planned proceedings and expansion of procedures for collecting evidence, which were discussed in relation to the reinforcement and speeding up of civil trials in general, the following measures should be carried out with the aim of reducing the duration of proceedings for litigation related to intellectual property rights (23.1 months in 1999) by about half:
  • The specialized processing system of the specialized departments at the Tokyo and Osaka District Courts should be further reinforced by measures such as concentrating both judges with strengthened expertise and court research officials who are technical experts, and introducing the expert commissioner system that can respond to cutting-edge technical fields, as well as, in consideration of the actual circumstances of litigation related to intellectual property rights described above, granting exclusive jurisdiction to the Tokyo and Osaka District Courts for litigation related to patent rights, utility model rights, etc. (However, when special circumstances exist such that exclusive jurisdiction by those two courts would harm the interests of parties concerned, processing at another court should be made possible.) Through these measures, the specialized departments at both district courts shall function substantially as "patent courts." Studies should also be made and necessary measures should be taken to reinforce the specialized processing system of the Tokyo and Osaka High Courts.
  • In order to utilize the expertise of patent attorneys (benrishi) possessing technical knowledge, the right of representation in infringement proceedings concerning patent rights, etc. (limited to cases in which a lawyer is a representative for the litigation) should be given to patent attorneys after taking highly reliable measures to assure their ability.
  • The technical expertise of the legal profession should be strengthened.
    In addition, for proper and prompt processing of disputes over intellectual property rights, it is also necessary to make possible flexible resolutions that are not based on legal proceedings. ADR at bodies such as the Japan Arbitration Center for Intellectual Property (the former Arbitration Center for Industrial Property) and the Japan Patent Office (Hantei system) should be expanded and vitalized, and coordination between litigation and ADR should be reinforced by such measures as establishing procedures through which the courts can, in accordance with the nature of cases, entrust all or part of the proceedings to ADR organizations with relevant expertise.
    In order to implement the above measures smoothly and further to appropriately respond hereafter to users' needs related to resolution of disputes over intellectual property rights, as well as to realize the prevention of disputes and the proper and prompt resolution of cases, it is desirable to further strengthen the coordination among related organizations (including related ministries and agencies and the courts).



    4. Strengthening of Comprehensive Response to Labor-Related Cases

    Measures related to reinforcement and speeding up of civil trials and measures to reinforce the technical expertise of the legal profession should be carried out, aiming to reduce the duration of proceedings for cases related to labor by about half.
    For labor-related cases, labor conciliation, a system in which those who have specialized knowledge and experience related to employment and labor-management relations become involved, should be introduced as a special type of civil conciliation.
    Studies should be started promptly on how the system of judicial review of the Labor Relations Commissions' orders for redress should be, the propriety of introduction of the system of participation by persons possessing specialized knowledge and experience concerning employment and labor-management relations, and the necessity of adjusting legal proceedings particular to labor-related cases.

    With the changes in social and economic situations in recent years, the number of labor-related litigation cases, mainly of cases related to individual labor-management relations, has been rapidly increasing, against the backdrop of corporate reorganizations and the development of the individualization of corporate personnel and labor management. (The number of newly filed ordinary first instance civil cases at the district courts increased from 640 in 1989 to 1,802 in 1999.) Moreover, a far greater number of consultations have been brought to administrative bodies such as local governments' labor administration offices and the Labor Standards Inspection Offices.
    For labor-related cases, decisions with regard to systems and practices of employment and labor-management relations must be made based on the actual conditions of each workplace, company or type of industry. Therefore, in order to properly and promptly process these cases, specialized knowledge becomes necessary -- not specialized knowledge of the scientific or technical variety, but rather specialized knowledge with regard to such systems and practices. Moreover, labor-related cases have a direct influence upon the living situation of those involved, so, in comparison with general cases, especially prompt resolution is desired. For reasons such as these, European countries have been adopting various special dispute resolution procedures, including the so-called labor lay participation system, and the procedures have in fact been functioning quite well.
    In Japan, as well, given the specialized nature of labor-related cases, case trends, etc., it is also necessary to comprehensively consider measures for proper and prompt processing of labor-related cases, including not only legal proceedings but also ADR mechanisms which can resolve cases simply, promptly and flexibly.
    First of all, with the aim of reducing by about half the duration of proceedings for labor-related litigation in which the examination of human evidence is conducted, the previously-discussed steps of reinforcement of technical expertise of the legal profession, the promotion of planned proceedings and the expansion of procedures for collecting evidence should be undertaken.
    Concerning ADR, labor conciliation should be introduced as a special type of civil conciliation in which those who have specialized knowledge and experience related to employment and labor-management relations participate. (When designing the system the following points should be studied in light of the relationship with other dispute resolution methods: 1) Applicants can file a petition at their place of domicile; 2) Coordination between ADR and legal proceedings is reinforced; 3) Mechanisms shall be established to promote the conclusion of conciliation.) (A "bill for a law concerning the promotion of resolution of individual labor-related disputes," the content of which is the setting up of a new processing system for individual labor-management related cases, was submitted to the 151st Diet session [in 2001]. In addition to this bill, the introduction of a labor conciliation system and establishment of various routes for resolving cases are of significance.)
    In addition to bringing the above measures to implementation, in order to realize the prevention of labor-related disputes and the proper and prompt resolution of cases, cooperation and collaboration among related organizations (including related ministries and agencies and the courts) are indispensable, and further reinforcement thereof is expected.
    In particular, study should be started promptly, with due regard to how Labor Relations Commissions should be, for a better system of judicial review of the Labor Relations Commissions' orders for redress (rodo iinkai no kyusai meirei ni taisuru shiho shinsa no arikata), including measures to cure the so-called "de facto five-stage trial," which may occur when an employer files a suit for cancellation of a Labor Relations Commission's order of redress for an unfair labor practice. In addition, studies should also be started promptly on the propriety of introduction of the system of participation in court proceedings by persons possessing specialized knowledge and experience concerning employment and labor-management relations (such as the labor lay participation system adopted in various countries in Europe), and the necessity of establishing legal proceedings particular to labor-related cases, including readjustment of the relationship with ADR.



    5. Improvement of Functions of Family Courts and Summary Courts

    (1) Consolidation in Family Courts of Actions Related to Personal Status

    Family-related cases (actions related to personal status, etc.), such as matters of divorce, should be transferred to the jurisdiction of family courts, and the system should be improved by introducing a court councilor system for divorce actions, etc.

    Of the family-related dispute cases, in the case of so-called actions related to personal status (jinji sosho jiken), such as matters of divorce, annulment of marriage, and acknowledgment of a child, in principle a petition for family conciliation first must be filed in family court, seeking to settle the dispute through conciliation, before a suit is instituted. If the family conciliation fails and the dispute is to be settled through litigation, the case has to be filed in district court. Therefore, the procedure for family-related dispute settlement is divided into the conciliation procedure of the family court and the procedure for actions related to personal status of the district court, and there is no coordination between the two procedures.
    Moreover, of the family-related dispute cases, disputes other than actions related to personal status, such as division of property in the case of divorce, designation of the person who will have child custody, bearing of child support, and bearing of spousal support, have to be tried and judged by a family court through family affairs determination procedures. Yet some of these matters can be tried and judged by a district court as long as they are related to a divorce suit. As such, the distribution of jurisdiction between the family court and the district court is extremely complicated and difficult to understand for the people who are the users of the justice system.
    Family court probation officers are stationed at family courts and they engage in specialized work. Results of their studies greatly aid family courts in achieving proper conciliation and judgment. In district courts, no such organ exists, and therefore the district courts cannot use such an organ in the trial and judgment of actions related to personal status. In view of this situation, actions related to personal status, including those cases, such as cases for confirmation of the parent-child relationship, that have been interpreted as falling within the category of actions related to personal status, should be transferred to the jurisdiction of family courts. Claims for damages arising out of the facts constituting grounds for personal litigation, such as the facts of grounds for divorce, also should be brought under the jurisdiction of family courts, as long as they can be joined with actions related to personal status. Besides the above steps, study should be made with regard to whether there are family-related dispute cases other than actions related to personal status that should be brought under the jurisdiction of family courts and, if any such cases are found, with regard to the scope of the jurisdiction.
    Together with these steps, the number of family court probation officers having specialized knowledge for scientific research should be increased, and, from the standpoint of reflecting people's good sense, the family court councilor system should be expanded in order to involve councilors in trials of divorce and other suits and to allow them to question witnesses and give their opinions on the desirable resolution of the case. The Law of Procedure in Actions Relating to Personal Status (Law No. 13 of 1898) that is applied to actions relating to personal status should be revised in its entirety, including being rewritten in a colloquial style and with much use of easier Hiragana to replace out-of-date Kanji characters.


    (2) Securing of Diverse Sources of Persons to Serve as Conciliation Members, Judicial Commissioners, and Court Councilors
    With regard to civil conciliation members, family affairs conciliation members, judicial commissioners and court councilors, measures, including a reconsideration of selection methods, should be taken to secure sources of persons diverse in terms of age, occupation, knowledge, experience, and so forth.

    The judicial commissioner system and civil conciliation system in summary courts and the family affairs conciliation system and councilor system in family courts can be found significant as one of the systems of popular participation in the justice system, in that people other than those in judicial circles can take part in litigation, domestic relations determinations and conciliation procedures.
    From the standpoint of further improving these systems and involving well-qualified persons from various walks of life, measures should be taken, including a reconsideration of selection methods, to secure a range of appropriate persons diverse in terms of age, occupation, experience and so forth. The same applies to civil conciliation members of district courts.


    (3) Expansion of the Jurisdiction of Summary Courts and Substantial Increase in the Upper Limit on Amount in Controversy in Procedures for Small-Claims Litigation

    With regard to the subject matter jurisdiction of summary courts, the upper limit on the amount in controversy should be raised by taking trends of economic indices into account.
    The upper limit on the amount in controversy in procedures for small-claims litigation should be raised greatly.

    The summary courts handle, in principle, cases involving claims not exceeding 900,000 yen. Of these cases, the cases covered by the simpler, faster procedure for small-claims litigation consist of cases involving claims of less than 300,000 yen.
    The upper limit on the subject matter jurisdiction of the summary courts was set at 900,000 yen when the Court Law was revised in 1982. The limit should be raised by taking account of the trends of economic indices, etc., for the purpose of summary and fast settlement of minor cases and from the standpoint of facilitating people's access to the courts by making the best use of summary courts' characteristic of being closer to the people.
    The procedure for small-claims litigation, which was established by the new Code of Civil Procedure, is evaluated highly by its users. From the standpoint of making it easy for more people to use the procedure, the upper limit on the amount in controversy that limits the scope of cases covered by the procedure for small-claims litigation should be raised greatly.



    6. Strengthening of the Civil Execution System - Securing Effectiveness of Execution of Rights -

    New measures to improve the civil execution system should be introduced, such as the following:
  • Measures to promote performance by obligors.
  • Measures to determine the assets of obligors.
  • Measures against obstruction of real estate execution by illegal occupants, etc.
    A system should be established to secure the performance of obligation for the periodic delivery of small amounts of money, such as those obligations that are set by domestic affairs determinations and conciliation.

    • Under the existing law, which allows only direct enforcement with regard to compulsory execution based on a money claim, if the claim amount is small, the time and the cost required for implementing compulsory execution will be disproportionately more than the claim amount. And even if a money claim case has been decided in favor of the creditor, he or she may not be able to implement compulsory execution because he or she may not know what kind of assets the obligor has or because the obligor may intentionally conceal his or her assets. As to the obstruction of real estate execution, means that are available to the mortgagee or the successful bidder are increasing. For example, as a result of the revisions of the Civil Execution Law in 1996 and 1998, it has become possible, in proceedings for official auction, to evict more accurately and swiftly those occupying illegally based on abusive short-term leases. Furthermore, the Supreme Court, in its Grand Bench judgment of November 24, 1999, recognized subrogation of the claim for obstructive eviction against an illegal occupant of foreclosed real estate. Even so, cases of abuse of short-term leases and cases of execution obstruction by so-called sen'yuya (illegal occupants) are being reported.
    In light of these problems, new measures to improve the civil execution system, such as measures to promote performance by the obligor, measures to determine the assets of the obligor, and measures against obstruction of real estate execution by illegal occupants, etc., should be introduced from the standpoint of securing the effectiveness of execution of rights. It is also reported that the existing law is not adequate to secure the performance of obligations for periodic delivery of small amounts of money, such as those obligations that are set by domestic affairs determinations and conciliation (alimony, etc.). In light of such reports, a system to secure the performance of those obligations should be established from the standpoint of securing the effectiveness of execution of rights.
    Furthermore, the personnel system of the courts should be improved and strengthened, including sharply increasing the number of judges and court officials engaged in civil execution, to achieve proper and prompt disposal of civil execution cases.



    7. Expansion of Access to the Courts

    (1) Lightening of Cost Burden on Users

    a. Filing Fee

    Filing fees should be reduced within the scope needed, while maintaining the indexation system.
    As for the filing fees for small-claims litigation cases in the summary courts, study should be undertaken, including study of the possible introduction of a fixed-fee plan, and necessary measures should be taken.

    When filing a suit with a court, the people must pay a filing fee (petition fee). The amount of the fee is calculated in accordance with the value of the object of the suit (amount in controversy), this being the so-called "slide" or indexation system.
    Under the existing indexation system, depending on the case, the filing fee can be quite high. While maintaining the indexation system, filing fees should be reduced within the scope needed, so as to reduce the cost burden on users. As for the filing fee for small-claims litigation cases in the summary courts, study should be undertaken, including study of the possible introduction of a fixed-fee plan, and necessary measures should be taken in order to make it easy for the public to use that system.


    b. Losing Party Responsibility for Lawyer Fees
    From the standpoint of making the use of a lawsuit easy by securing the fairness of the financial burden for a party who had to avoid a lawsuit due to the inability to collect lawyer fees from the other side, a system should be introduced to have the losing party bear a portion of the lawyer fees as being included in the costs of litigation. In designing such a system, in order that the system not, contrary to the above viewpoint, unduly discourage lawsuits, the system should not be introduced across the board, and study should be made as to the scope of cases to which the system should not be applied and how best to handle such cases, and as to how to determine the amount of burden to be borne in cases in which the losing party bears a burden.

    Under the existing law, the lawyer fees that a party in a lawsuit pays to the lawyer he or she selected are, in principle, not included in the costs of litigation to be borne by the losing party. Instead, each party must bear his or her own lawyer fees. (Incidentally, according to court precedents, when a person has enlisted the help of a lawyer to respond to an unlawful action, or when a person was compelled to file a suit to exercise the right to claim compensation for damages caused by an unlawful act, the winning party can claim the lawyer fees from the other party as part of the damages, within the amount deemed appropriate.)
    While there are cases in which having the losing party bear a portion of the lawyer fees of the winning side may encourage the utilization of lawsuits, there are also cases in which such a system might unduly discourage lawsuits. A system for having the losing party bear lawyer fees should not be introduced across the board. Based on this fundamental understanding, from the standpoint of making it easy to utilize the option of a lawsuit by securing the fairness of financial burden for a party who had to avoid a lawsuit due to the inability to collect lawyer fees from the other side, a system should be introduced by which, under certain specified conditions, the losing party may be made to bear a portion of lawyer fees as expenses recognized as necessary for the litigation. However, the amount to be borne by the losing party shall not be the same amount as the fees the winning party actually paid to his or her lawyer, but rather should correspond to a part of the lawyer fees recognized as having been necessary for the litigation and should be a reasonable amount that is foreseeable for the parties concerned. Moreover, when the system of having a losing party bear the burden is feared to unduly discourage the lawsuit, such a system should not be applied. From these standpoints, study should be made as to the scope of cases to which the system is not to be applied and how best to handle such cases, and as to how to determine the amount of burden to be borne in cases in which the losing party bears a burden. In this study, due consideration should also be given to the relationship with deferral of costs of litigation (sosho kyujo), legal aid, and other systems and to the people's understanding of how the burden for lawyer fees should be handled.


    c. Procedure for Determining Costs of Litigation
    The procedure for determining the costs of litigation should be simplified.

    Of the costs incurred in a civil suit, the costs of litigation that are set forth by law are, in principle, to be paid by the losing party. Therefore, the winning party can demand that the losing party reimburse the costs of litigation paid by the winning party. However, due to the complicated nature of the procedure, there are few cases of such a claim having actually been made. In the end, each party has to bear the burden himself or herself.
    Since this is tantamount to imposing the cost-bearing burden on the winning party, the procedure for determining costs of litigation should be simplified.


    d. Litigation Cost Insurance
    The development and spread of litigation cost insurance is expected.

    So-called litigation cost insurance is a system in which individuals or others pay insurance premiums in advance, and, in the event they are actually involved in a legal dispute, costs of the litigation, including lawyer fees, are covered by the insurance money. The spread of such insurance in Japan is mainly limited to liability insurance, such as automobile insurance. In recent years, however, the Japan Federation of Bar Associations has extended a degree of cooperation to non-life insurance companies to help them develop and spread litigation cost insurance.
    Since the spread of litigation cost insurance is significant as a way to facilitate access to justice for the people, the development and spread of such insurance is expected.


    (2) Reinforcement of Civil Legal Aid System
    The civil legal aid system should be further reinforced after comprehensive, systematic studies are made on the scope of cases and persons to be covered, what burdens should be borne by users, how the system should be managed, etc.

    The coming into force of the Civil Legal Aid Law (Law No. 55 of 2000) on October 1, 2000, has provided the legal ground for the expansion of the civil legal aid system. The Law stipulates that the state shall, as its duty, ensure proper management of the system and strive for its sound development.
    However, the scope of cases and persons covered by the system is narrow and its budget is small as compared with the systems of the United States and European nations. From the standpoint of providing substantial security for the people's "right of access to the courts" (Article 32 of the Constitution of Japan), the system is still inadequate. We must also study the method of management in a comprehensive manner, keeping in mind its relationship to how the system of public defense for suspects and defendants in criminal justice is arranged (see Part 2-2 below).
    From these viewpoints, the civil legal aid system should be further improved after comprehensive, systematic studies are made on the scope of cases and persons to be covered, what burdens should be borne by users, how the system should be managed, etc.


    (3) Enhancing the Convenience of the Courts

    a. Consultation Windows Regarding Utilization of the Justice System; Furnishing of Information

    By establishing consultation windows (access points) regarding utilization of the justice system in the courts, bar associations, local public bodies, etc., and by promoting the establishment of networks by using Internet home pages, the furnishing of comprehensive information concerning the justice system, including various alternative dispute resolution (ADR) mechanisms, should be strengthened.

    At present, consultation windows (access points) at which a person can obtain one-stop comprehensive information concerning dispute resolution procedures such as adjudication and extra-judicial alternative dispute resolution (ADR) mechanisms are not adequately provided.
    Therefore, the courts, bar associations, local public bodies, ADR organizations, etc., that have already established access points should strive to further improve them, and those that have yet to establish such points should establish them immediately. Efforts also should be made to connect each access point by a network and to share information by using the Internet, etc.
    As specific steps, for example, courts should take the necessary measures to expand their consultation functions so that they can provide at their access points comprehensive information concerning the justice system, including legal advice available from bar associations, the legal aid system, and ADR, not to mention court procedures; and necessary steps should be taken so that the people can even go to access points outside of the courts, at local public offices, for example, and obtain information on the consultation services provided by the courts and information on court procedures. Bar associations should also take similar measures. It is also hoped that local public bodies will implement measures to provide comprehensive information concerning the justice system of the type described above at consumer service centers and the like, and that they will implement measures, in cooperation with bar associations, to provide introductions to lawyers.

    b. Introduction of Information Technology (IT) to the Courts, etc.

    In order to promote the strong introduction of information technology (IT) to various phases of the courts' work, such as litigation proceedings (including electronic submission and exchange of lawsuit-related documents), clerical work, and furnishing of information, the Supreme Court should work out and publish plans for introducing information technology.

    Each court has made progress in equipping judges and court staff with personal computers, sharing schedule deadline management information through section-by-section networks, and the development and introduction of case disposition systems in such areas as real estate execution, bankruptcy, conciliation and demands for payment. In addition, a clerical disposition system has begun to be introduced, covering ordinary civil cases from the filing stage to the close of the case. Furthermore, the new Code of Civil Procedure has opened the way for the use of teleconferencing in civil procedures.
    However, in view of the remarkable advances in information technology, it is necessary to further promote the active use of IT in legal procedures from the standpoint of making proceedings more efficient and speedy and increasing services for users. To this end, information technology, such as databases and the Internet, should be introduced and used more positively in various phases in the work of the courts, such as litigation proceedings, clerical work, and furnishing of information. Submission and exchange of proceeding-related documents through the Internet also should be studied. From these standpoints, the Supreme Court should work out and revise plans for introducing information technology and announce such plans in order to cope with future technological innovation flexibly and positively.

    c. Nighttime and Holiday Service

    The nighttime service of the courts, which is already in place, should be made well known to the public, and studies should be made to further expand the nighttime service and to introduce holiday service.

    At present, courts do not exercise their functions on legal holidays, except for warrant-related business, and even on weekdays, their functions are exercised in general only during working hours. However, some family courts in large cities adjudicate or conciliate domestic relations matters, offer advice on domestic relations, and accept cases after 17:00, in accordance with the actual situation of each region. Similarly, summary courts in Tokyo and Osaka offer conciliation and offer advice on civil affairs after 17:00.
    From the standpoint of expanding people's access to the courts, each court should actively work to make the nighttime service of the courts well known to the public. As to expanding the nighttime service to other courts and hearing cases at nighttime and on holidays, these measures should be positively studied from the standpoint of expanding people's access to the courts, while watching the future use of such service and grasping the degree of the people's needs and giving due consideration to the burden on the parties concerned (adverse party to be summoned at night, preparedness of court officials, etc.).

    d. Geographical Distribution of Courts

    The geographical distribution of courts should be readjusted constantly, taking account of population, traffic conditions, the number of cases, etc.

    The current geographical distribution of summary courts and branches of district and family courts is based on reviews made in accordance with the revised law of 1987 and the revision of the Supreme Court rules in 1989.
    The reviews were conducted taking account of the future population and population trends, trends in the number of cases, geographic scope of the jurisdictional area, changes in traffic conditions, etc. From the standpoint of ensuring the convenience of courts, the geographical distribution of courts should be readjusted constantly, taking factors such as the above into account.


    (4) Effective Relief for Victims

    a. Determining the Amount of Damages

    With regard to determining the amount of damages, in light of the criticism that, viewed overall, the amount of damages is too low, it is desirable that necessary institutional studies be made and that damage determinations continue to be made in line with the circumstances of each individual case without being bound by the so-called "market rate" of past cases.

    Under the Japanese system for compensating damages caused by torts, when a person suffers a loss caused by the unlawful act of another person, the actual loss (including mental damage) suffered by the victim is assessed in monetary terms and the perpetrator must compensate for these damages so that the victim will be restored to the condition he or she was in before the unlawful act was committed.
    With regard to determining the amount of damages, in light of the criticism that, viewed overall, the amount of damages is too low, it is desirable that necessary institutional studies be made and that damage determinations continue to be made in line with the circumstances of each individual case without being bound by the so-called "market rate" of past cases. (In this connection, the new Code of Civil Procedure states that, when proving the amount of damages is extremely difficult, the court may decide the amount deemed as appropriate at its own discretion, and has thus reduced the burden of proof.)
    Incidentally, the United States and some nations adopt a punitive damages system under which a court can order a perpetrator who committed an especially bad act to pay damages exceeding the amount the victim actually suffered, for the purpose of deterring similar acts in the future. However, since it has been pointed out that the punitive damages system does not align with the Japanese legal system, which rigidly separates civil liability from criminal liability, the system should be further studied as a future possibility.

    b. Measures for Cases in which the Number of Victims Is Large but the Amount of Damages Suffered by Each Victim Is Small

    As to the possible introduction of the right of group action and, in case of introduction of the right, the method for determining qualified groups, these matters should be studied for each field of law individually by taking into account the purpose of each respective substantive law and the rights and interests that the law is designed to protect.

    When the number of victims is large but the amount of damages suffered by each victim is small, it is generally not economically feasible for each victim to take an individual legal action. In order to make it easy to file a suit in such a case, in Germany, under laws such as the unfair competition prevention law and the law concerning general contractual conditions, the right of group action to seek a court injunction against such illegal acts is granted to organizations whose purpose is to protect the interests of victims, and in the United States, the class action system, in which the damages for multiple victims may be consolidated into a single claim, has been established.
    In Japan, as to the possible introduction of the right of group action and, in case of introduction of that right, the method for determining qualified groups, these matters should be studied for each field of law individually by taking into account the purpose of each respective substantive law and the rights and interests that the law is designed to protect. Incidentally, with regard to the class action system, the new Code of Civil Procedure has reinforced the chosen party (sentei tojisha) system so that it can perform a kind of function similar to the class action system. This matter should be further studied as a future task, paying attention to the circumstances of utilization of the chosen party system.


    8. Reinforcement and Vitalization of Alternative Dispute Resolution (ADR) Mechanisms

    (1) Significance of Reinforcing and Vitalizing ADR

    In addition to making special efforts to improve the function of adjudication, which constitutes the core of the justice system, efforts to reinforce and vitalize ADR should be made so that it will become an equally attractive option to adjudication for the people.
    In order to promote and improve various types of ADR by making use of their characteristics, cooperation among organizations concerned should be strengthened and a common institutional base should be established.

    Disputes that occur in the society vary in size and nature. Establishment of various means to resolve disputes according to the nature of the individual case and the circumstances of the parties concerned has great significance in achieving a user-friendly justice system and preventing disputes from becoming serious. Unlike the rigid judicial procedures, alternative dispute resolution (ADR) makes it possible to respond flexibly, with resolutions that give scope to users' autonomy, resolutions behind closed doors to protect privacy and business secrets, simple and prompt resolutions at low cost, fine-tuned resolutions making use of the knowledge of experts in various fields, and resolutions in line with the actual circumstances regardless of legal rights and obligations.
    Various types of ADR are available in Japan, including conciliation proceedings by the courts and, among extra-judicial options, such forms as arbitration, conciliation, mediation and consultation by administrative organizations, private bodies, and bar associations. In reality, however, with the exception of some organizations, these mechanisms are not fully functioning. Meanwhile, the globalization and computerization of economic activities have prompted the United Nations, etc., to conduct study into the establishment of a system to promptly settle international commercial disputes and, under competitive environments, new trends have emerged in foreign countries, such as the development of the private business form of ADR. It is incumbent on Japan to also move quickly.
    Given these circumstances, in order to make the justice system more user-friendly, first, it is indispensable to make special efforts to improve the function of adjudication, which constitutes the core of the justice system, so as to make it easier for the people to use. In addition, efforts to reinforce and vitalize ADR should be made so that it will become an attractive option for the people alongside adjudication.
    In order to help each ADR mechanism to improve and develop by making use of its particular characteristics, cooperation among organizations concerned should be strengthened and a common institutional base should be established.


    (2) Strengthening Cooperation Among Organizations Related to ADR

    In order to promote cooperation among courts, related organizations and the government ministries and agencies concerned toward the reinforcement and vitalization of ADR, arrangements should be made for a system such as a liaison office among the various organizations concerned and a liaison conference among the ministries and agencies concerned.
    Comprehensive consultation windows concerning dispute resolution, including litigation and ADR, should be improved and cooperation should be promoted by utilizing information technology, such as Internet portal sites, in order to realize a system to provide information at one stop.
    In order to secure future personnel for ADR, efforts should be made to enhance training concerning necessary knowledge and skills, after promoting the disclosure and sharing of information on needed human resources and dispute resolution, etc.

    As to the reinforcement and vitalization of ADR, it is necessary to conduct diversified study in accordance with the characteristics of each form of ADR. Still, there are many problems common to the various forms of ADR, such as strengthening the provision of information, securing future personnel, establishment of a financial base, and improvement of the institutional base. Therefore, in order to promote cooperation among courts, related organizations and the government ministries and agencies concerned toward the reinforcement and vitalization of ADR, arrangements should be made for such a system as a liaison office among the various organizations concerned and a liaison conference among the ministries and agencies concerned.
    As to specific cooperation for the operation of ADR, from the standpoint of increasing the convenience for users and enhancing the recognition and reliability of ADR, it is necessary to strengthen cooperation in providing information concerning ADR. To this end, comprehensive consultation windows concerning dispute resolution, including lawsuits and ADR, should be improved and cooperation should be promoted by utilizing information technology, including the creation of ADR portal sites on the Internet, in order to realize a system to provide information at one stop.
    Furthermore, it is important to promote cooperation in securing personnel for ADR and thereby to contribute to the improvement of the quality of ADR. From these standpoints, individual organizations, including courts, should positively disclose information, such as personnel, cases resolved, and resolution methods, while giving due consideration to privacy and confidentiality, and then information-sharing among the organizations concerned should be promoted by utilizing portal sites and through interchanges of personnel. Thereafter, training concerning knowledge and skills necessary for future ADR personnel should be enriched.


    (3) Coordination of Common Institutional Bases concerning ADR

    While carefully watching international movements, Japan should establish an arbitration scheme (including international commercial arbitration) at an early date.
    From the standpoint of establishing a comprehensive institutional base for ADR, necessary measures should be studied, including the possible enactment of a law (such as "ADR Basic Law") that prescribes a basic framework to promote the use of ADR and to strengthen coordination with trial procedures. In doing so, the following measures specifically should be studied: coordination of conditions for giving the effect of interruption (suspension) of the statute of limitations; granting execution power; including ADR as an object of the legal aid system; and coordination of procedures for using trial procedures for the whole or a part of an ADR proceeding, and vice versa.
    In order to utilize non-legal professional experts, such as those from fields adjoining law (so-called quasi-legal professionals), in ADR, study must be given to each such profession individually, taking into account each profession's actual situation, and the status of such non-legal professionals should be legally defined as part of the revision of Article 72 of the Lawyers Law. That article should at least clarify the contents of restrictions in an appropriate way, including the relationship with persons engaged in corporate legal work, from the standpoint of responding to changes in the contents of services provided by professionals in fields adjoining law and the diversification of company forms, in order to ensure the predictability of the scope and modes of activities that are subject to restrictions.


    With regard to the common institutional base for ADR, Japan's arbitration scheme still is contained in the Law Concerning Public Summons Procedures and Arbitration Procedures, which was enacted in 1890, and which was left outside the scope of the revision of the new Code of Civil Procedure and remains as it has been since its enactment. An appropriate legal scheme for arbitration should be established at an early date, while watching international movements, such as the study now being made by the United Nations Commission on International Trade Law (UNCITRAL). In connection with establishing the arbitration scheme, legislation on international commercial disputes should be considered, as the globalization of economic activities and the rapid spread of cross-border electronic commerce have made it extremely important to resolve international private commercial disputes promptly.
    From the standpoint of establishing a comprehensive institutional base for ADR, necessary measures should be studied, including possible enactment of a law (such as the "ADR Basic Law") that prescribes a basic framework to promote the use of ADR and to strengthen coordination with trial procedures. In doing so, from the standpoint of promoting the use of ADR, study should be given, for example, to giving the effect of interruption (suspension) of the statute of limitations, granting execution power, and concrete requirements for including ADR as an object of the legal aid system. Also, from the standpoint of promoting procedural linkage between ADR and the courts, concrete study should be given to coordinating procedures for using trial procedures for the whole or a part of an ADR proceeding, and vice versa.
    As to establishment of a system to secure future personnel, in order to utilize non-legal professional experts, such as those from fields adjoining law (so-called quasi-legal professionals), in ADR, study must be given to each such profession individually, taking into account each profession's actual situation, and the status of such non-legal professionals should be legally defined as part of the revision of Article 72 of the Lawyers Law. That article should at least clarify the contents of restrictions in some form, including the relationship with persons engaged in corporate legal work, from the standpoint of responding to changes in the contents of services provided by professionals in fields adjoining law and the diversification of company forms, in order to ensure the predictability of the scope and modes of activities that are subject to restrictions.


    9. Reinforcement of the Checking Function of the Justice System vis-a-vis the Administration

    With regard to how judicial review of administration should be (gyosei ni taisuru shiho shinsa no arikata), including review of the Administrative Case Litigation Law, it is necessary to conduct comprehensive study from various angles under the basic concept of the "rule of law," with the roles of the judicial and administrative branches in mind. The government should promptly begin such study in earnest.

    (1) Necessity of Review of the Administrative Litigation System
    As one of the three branches in the governing structure, the judiciary plays an important role, through the exercise of the judicial power, in realizing the guarantee of rights and freedoms of the people, by checking administrative actions via the system of checks and balances.
    However, during the discussions at this Council, the following problems were pointed out with regard to the system of administrative litigation procedures: (i) As a problem inherent in the current system of administrative litigation procedures, administrative agencies are granted a predominant status (in the form of judicial non-intervention into political judgments, respect of administrative agencies' primary judgment, the central role given to revocation suits, etc.), based on trust in administrative agencies and recognition of the limits of judicial power, and, as a consequence, kokoku appeal does not fully perform its originally intended function. (ii) As new problems that cannot be dealt with by the current administrative litigation system, there have emerged, in line with an increase in administrative demands and the diversification of administrative actions, new types of disputes (lawsuits seeking revocation of administrative plans, etc.) that cannot be dealt with within the framework of traditional revocation suits. Measures for dealing with these problems must be taken at the respective levels of substantive law and procedural law. (iii) Problems exist with regard to the courts' structure for dealing with the specialized nature of administrative cases.
    With the role played by the justice system expected to further increase in 21st century Japanese society, it is indispensable to consider measures to reinforce the judicial check function vis-a-vis the administration.
    Based on this recognition, various specific problems were taken up during this Council's discussions on the review of the administrative litigation system.
    First of all are various problems concerning administrative litigation procedures. For example, individual problems relating to the current Administrative Case Litigation Law include plaintiff capacity, existence of a reviewable disposition, standing, time limitations on filing suits, jurisdiction, and the non-suspension of execution principle, and also include whether or not to introduce new types of actions such as actions to impose duties, preventive actions against omissions, and suits for revocation of administrative legislation. Whether it is necessary to establish a proper "Administrative Litigation Law" (tentative name), which is distinctly separated from a model based on civil procedure, is another matter that might be considered. It will also be necessary to identify and study problems of individual laws (the principle of exhaustion of remedies, the disposition requirement, plaintiff capacity, etc.).
    Furthermore, it is also important to deal with various problems relating to establishing the base for administrative litigation. For example, it is necessary to earnestly study measures to establish specialized adjudicative organizations (administrative courts or administrative case special sections, circuit courts, etc.) and to strengthen the specialized ability of members of the legal profession (judges and lawyers) who handle administrative cases. Improvement of education of administrative law at law schools is also called for.


    (2) Comprehensive, Multi-Faceted Study with the Roles of the Judiciary and Administration Kept in Mind

    In view of the nature of the matter, it is essential to study specific measures to solve these problems while striving to secure consistency between the viewpoint of justice system reform and the movement for administrative reform. It is also necessary to pay full attention to the relationship with other related laws, such as the Administrative Procedure Law, the Information Disclosure Law, and the Administrative Complaint Review Law, and the appropriate allocation of functions with the state compensation system. It is also necessary to give consideration to the relationship with the upgrading of the quasi-judicial function of administrative commissions. To begin with, in considering the manner in which judicial review of the administration should be undertaken, it is essential to thoroughly examine the role, function and limits of the administration and of the judiciary in the governing structure and the mutual relations of the three branches of government. It is for this reason that, with regard to measures to reinforce the checking function of the judiciary vis-a-vis the administration from the standpoint of achieving effective redress of people's rights, study has to be made comprehensively from various angles under the basic concept of the "rule of law," with the roles of the judicial and administrative branches in mind.
    The government should promptly start a full-scale study on measures concerning the judicial review of the administration, including a review of the Administrative Case Litigation Law.


    Part 2. Reform of the Criminal Justice System

    The purposes of criminal justice are to maintain the social order and to secure the safety of the people by accurately identifying crimes and arresting criminals, by finding out the truth of cases through fair procedures, and by fairly and speedily realizing the authority for punishment, bearing in mind the maintenance of public welfare and the guarantee of individual fundamental human rights. As the criminal procedure, by its very nature, inevitably constrains and limits the rights of the suspects, the defendants and other persons involved, such constraints and limitations can only be justified for such purposes and in accordance with due process (the various provisions regarding criminal procedure provided in Article 31 et seq. of the Constitution). (In other words, the discovery of the substantive truth -- finding out the truth of the case, pursuant to the guarantee of due process, is demanded. Thus, for example, the way of thinking that regards these two elements as being in absolute conflict with each other, or that emphasizes only one or the other, based on such a preconception, is not adequate. Moreover, concrete forms of related systems cannot be instantly deduced just by comprehending such matters only on an abstract level.) We believe the expectation of the people is that criminal justice will achieve such purposes fully and properly.
    As mentioned above, criminal justice is further strongly required to properly check the violations of the rules and to effectively sanction such violations through fair procedures in order to support a free and fair society in the coming age. In order to have criminal justice in Japan meet the expectations of the people and secure their trust hereafter, it is necessary to establish an appropriate system, perceiving the demands of the times and of society, paying attention to the above-mentioned purposes of criminal justice, checking the current problems of related systems in a composed and fair manner, and respecting the ideal of the guarantee of human rights set forth in the Constitution, including the guarantee of the defense rights of the suspects and the defendants.
    In connection with designing the system of criminal justice as a whole, it is indispensable to introduce a concrete framework for the criminal procedure, which can directly reflect the sound social common sense of the people (see Part 1-1 of Chapter IV, "Establishment of the Popular Base of the Justice System," below), in order to secure and further raise the trust of the people in criminal justice, and this must be said to have important significance as a part of the measures to establish the popular base for the justice system.



    1. Reinforcement and Speeding Up of Criminal Trials

    Most criminal trials are managed promptly, but among the complicated cases of grave public concern, there are some cases in which trials in the first instance alone take a considerably long period of time. Since this is one of the factors causing the people's loss of trust in criminal justice as a whole, we must study measures to realize thorough and speedy criminal trials.
    In particular, in relation to newly introducing a system for popular participation in the trial proceedings for a certain portion of criminal cases, this demand becomes even more pronounced, and reexamination of the systems concerned, with cases not subject to popular participation also in the perspective, is critical.
    The basic direction for this reform is to realize efficient and effective trial proceedings for truly contested cases through active allegation and presentation of evidence by the parties, focusing on clarifying the contested issues, under the appropriate direction of the trial by the court, in concentrated proceedings (holding court sessions over consecutive days), premised on sufficient advance preparation by both parties, and to reinforce the human base and revise the procedures so as to accomplish this.

    The following new preparatory procedures should be introduced:
  • A new preparatory procedure presided over by the court should be introduced in order to sort out the contested issues and to establish a clear plan for the proceedings in advance of the first trial date.
  • To achieve the thorough ordering and clarification of the contested issues, it is necessary to expand the disclosure of evidence. For that purpose, rules regarding the timing and the scope of the disclosure of evidence should be clearly set forth by law, and a framework that enables the courts to judge, as necessary, the need for the disclosure of evidence should be introduced as part of the new preparatory procedure.
    Trials should in principle be held over consecutive days, and necessary measures should be taken in order to secure the realization of this principle.
    Consideration should be given to how the related systems should be so as to realize the principles of directness and orality.
    Consideration should be given to concrete measures that secure the effectiveness of trial direction by the courts in order that trials are managed in a thorough and smooth manner.
    A system should be established that enables defense counsel to concentrate on individual criminal cases, including the establishment of the public criminal defense system; and at the same time, the human base of the courts and the public prosecutors offices should be enriched and strengthened.

    • (1) Introduction of New Preparatory Procedure
    For more thorough and speedier trials, it is indispensable to clarify the contested issues at an early stage. The provisions of the current laws and courts' rules regarding sorting out of the contested issues before the first trial date, however, do not necessarily work well because they are limited to promoting the preliminary talks of both parties and lack validity.
    Furthermore, the disclosure of evidence, other than that which the prosecutor plans to introduce at trial, to the defense to date has been handled according to standards set by judicial precedent of the Supreme Court. However, the contents of those standards and the rules for disclosure are not entirely clear. In part for that reason, disputes have arisen from time to time over the necessity of disclosure, and this has been one of the factors that prevents smooth proceedings. In light of these circumstances, concrete measures along the following lines should be adopted from the standpoint of achieving more thorough and speedier trials:
  • A new preparatory procedure presided over by the court should be introduced in order to sort out the contested issues and to fix a clear plan for the proceedings in advance of the first trial date.
  • To achieve the thorough ordering and clarification of the contested issues, it is necessary to expand the disclosure of evidence. For that purpose, rules regarding the timing and the scope of the disclosure of evidence should be clearly set forth by law, and a framework that enables the court to judge, as necessary, the need for the disclosure of evidence should be introduced as part of the new preparatory procedure.
    In considering the concrete form that the above-mentioned system should take, studies must be given to the role and the authority of the court in such a procedure (including the scope of judgment by the court over matters such as the admission of evidence and measures to secure the effectiveness of court direction for trial management) and to what the rights and duties of the parties should be in that procedure, while also paying attention to the relationship with the principle of avoiding prejudice. In addition, in connection with clarifying the rules regarding the disclosure of evidence, it is necessary to make rules that can avoid abuse of such disclosure (threats to witnesses, the danger of destruction of evidence, the danger of ruining the reputation or infringing the privacy of those involved).

    (2) Securing Court Sessions over Consecutive Days
    From the standpoint of the primary purpose of criminal proceedings, the trial should in principle be held over consecutive days to the greatest extent possible. To hold the trial over consecutive days is an almost indispensable precondition when introducing the new popular participation system to the proceedings. Although the current rules of criminal procedure already contain a similar provision, due to its lack of effectibility, related systems must be rearranged to enable the trial to be held over consecutive days, including clearly proclaiming this principle in the form of law.
    In addition, there is an opinion that a limit should be fixed by law for the duration of proceedings for trial in the first instance. The necessity of this measure should be considered further paying attention to the relationship with holding the trial over consecutive days.

    (3) Materialization of Directness and Orality (Vitalization of Trials)
    While there is a difference in views regarding the current state of affairs of operation of the hearsay rule (which basically bans admitting as evidence testimony whose contents are hearsay, or written records of statements made outside the trial instead of testimony at the trial), the principles of directness and orality (the principles that the court itself should decide the case by directly examining evidence and witness testimony, as well as hearing the oral arguments of both parties in open court) might be reversed, leading to the emasculation of the hearsay rule, if the trial is based on the examination of such written records as a result of a mistaken operation of the hearsay rule.
    The focus of the problem is centered on how the trial proceedings of truly contested cases can be enriched and vitalized based on the spirit of directness and orality. In particular, in relation to the introduction of the new popular participation system in the trial proceedings, these demands will become even greater in order to secure meaningful participation by the saiban-in (lay members of the judicial panel), discussed later. It is the proper manner of criminal trial that, in truly contested cases, both parties actively make allegations and present evidence to clarify the contested issues, in concentrated proceedings, and on that basis the judges (and the saiban-in in the case of proceedings in which the saiban-in participate) then form their decisions. The related systems should be considered bearing that in mind.

    (4) Securing Effective Trial Management by the Court
    In order to realize thorough and smooth proceedings, the court and both parties (prosecutors and defense counsel) naturally are required to assume the attitude of cooperating with and mutually supporting each other, with basic trust, making efforts in every capacity to improve their ability to manage the trial proceedings and the quality of their litigation activities respectively.
    With that understanding in mind, it is important to enable the court to conduct proper and effective trial direction, when necessary, from the standpoint of thorough and smooth trial management; and study must be given to what concrete measures should be undertaken to secure this.

    (5) Reinforcement of the Defense Structure
    The following human base of the parties concerned, including defense counsel, should be established in order to realize thorough and concentrated proceedings with trials over consecutive days:
  • In order to establish a framework in which defense counsel can concentrate on individual criminal cases, it is indispensable to organize the business structure of lawyers and to promote specialization through (i) establishing the public criminal defense system that will be described later in order to develop a framework whereby full-time lawyers can specialize in criminal cases, and (ii) as for private defense counsel, the incorporation of law firms.
  • In addition, it is necessary to enrich and strengthen the human base of the courts and the public prosecutors offices (see Parts 1 and 2 of Chapter III, "How the Legal Profession Supporting the Justice System Should Be," below).

    (6) Other (Measures for Rational, Efficient and Focused Investigations and Trial Proceedings)
    Distinguishing contested cases from uncontested cases and taking steps to make investigations and trial proceedings more rational and efficient are significant from the standpoint of thorough and prompt trials. As has been pointed out, introduction of the guilty plea system, which is followed in the Anglo-American legal system, as a concrete measure to that end, contains problems in terms of whether it is appropriate to let the defendant himself or herself dispose of the case and of the relationship with how the sentencing proceedings should be conducted; and further study is warranted, with possible reforms of the existing systems (summary order proceedings, simplified trial proceedings) also in the perspective.


    2. Establishment of Public Defense System for Suspects and Defendants

    A public defense system for suspects should be introduced, and a continuous defense structure covering both the suspect stage and the defendant stage should be established.
    The organization that manages the public defense system should be fair and independent, and public money should be introduced for operation of the system through a proper mechanism.
    While it is appropriate that technically the courts appoint and remove the defense counsel as in the case of the current court-appointed defense counsel system for the defendant, the above-mentioned organization should be responsible for the other services concerning administration of the system.
    The above-mentioned organization should take responsibility for the administration of the system vis-a-vis the people, and should establish a system that can offer thorough defense activity nationwide. In particular, it is critical to establish a structure that can support the effective implementation of the new popular participation system in the trial proceedings.
    In considering the structure and the management method of the above-mentioned organization and how to supervise it, respect should be given to the need to ensure transparency and accountability in order to ensure that it is worthy of the investment of public money.
    As the autonomy and the independence of the defense activity in the individual case must not be damaged even under the public defense system, this should be sufficiently taken into consideration in regard to designing as well as administering the system.
    The bar associations should actively cooperate in the establishment and management of the public defense system, taking into account the standpoint of the lawyer system reform, and at the same time should recognize that they themselves bear a serious responsibility to ensure the quality of the defense activity and should autonomously develop suitable arrangements for it.
    Special attention should be paid to those especially in need of help, such as the disabled and the young.
    Active consideration should be given to the public attendant system at juvenile hearing proceedings.

    (1) The Defense System for Suspects and Defendants, Financed by Public Money (The Public Defense System)

    a. Significance and Necessity of Introduction
    In order to ensure the fairness of the criminal justice system, it is critical to properly protect the rights of the suspects and the defendants. For that purpose, it is especially important to effectively secure the right to counsel. However, under the current law, those who cannot request the defense counsel to give them assistance due to a lack of sufficient funds are guaranteed a court-appointed defense counsel only after they are indicted. While efforts have been made to narrow the gap for suspects, such as through the rotating-duty lawyer (toban bengoshi) system of the bar associations and the voluntary legal aid activity of the Legal Aid Association, such approaches in themselves have limitations. (In this connection, the lawyer attendant system in juvenile cases is in almost the same situation.) In addition, it is important to develop the criminal defense framework in order to realize thorough and prompt criminal proceedings. From such a standpoint, a public defense system for suspects should be introduced and a continuous defense structure covering both the suspect stage and the defendant stage should be established, while also bearing juvenile cases in mind.

    b. How the Concrete System Should Be Introduced
    Based on the following ideas, broad consideration should be given as to how the concrete system should be and the conditions for it, and on the basis of that consideration a continuous defense structure covering both the suspect stage and the defendant stage should be established.
  • The organization that manages the public defense system should be fair and independent, and public money should be introduced for operation of the system through a proper mechanism.
  • While it is appropriate that technically the courts appoint and remove the defense counsel as in the case of the current court-appointed defense counsel system for the defendant, the above-mentioned organization should be responsible for the other services concerning administration of the system.
  • The above-mentioned organization should take responsibility for the administration of the system vis-a-vis the people, and should develop a system that can offer thorough defense activity nationwide. In particular, it is critical to develop a structure that can support the effective implementation of the new popular participation system in the proceedings. For that purpose, for example, measures might be considered such as hiring full-time lawyers or contracting with individual lawyers or lawyer corporations.
  • In considering the structure and the management method of the above-mentioned organization and how to supervise it, respect should be given to the need to ensure transparency and accountability in order to ensure that it is worthy of the investment of public money.
  • As the autonomy and the independence of the defense activity in the individual case must not be interfered with even under the public defense system, this should be sufficiently taken into consideration with regard to establishment and management of the system.
  • The bar associations should actively cooperate in the establishment and management of the public defense system, taking into account the standpoint of the lawyer system reform (see Part 3 of Chapter III, "How the Legal Profession Supporting the Justice System Should Be," below), and at the same time should recognize that they bear a serious responsibility to ensure the quality of the defense activity and that they themselves should reinforce that structure.
  • Special attention should be paid to those especially in need of help, such as the disabled and the young.

    (2) Attendant System for the Juvenile in Juvenile Hearing Proceedings, Financed by Public Money (The Public Attendant System)
    As a result of the revision of the Juvenile Law (Law No. 142 of 2000), a system for a court-appointed attendant for juveniles was introduced, for cases in which prosecutors participate in the juvenile hearing proceedings. However, taking into account the special nature of juvenile cases and the need for balance when juvenile suspects are also covered under the public defense system, active study must be given to a public attendant system for other juvenile hearing proceedings, as well. In that study, consideration must also be given to the structure of juvenile hearing proceedings, the manner in which functions are shared with family court probation officers, and the role of the attendants.


    3. How Public Prosecution Should Be (koso teiki no arikata)

    A system should be introduced that grants legally binding effect to certain resolutions of the Inquests of Prosecution.


    The monopolization of prosecutions by public prosecutors and the granting of discretion over indictments to public prosecutors is necessary to ensure uniform and fair exercise of the public prosecution authority nationwide, and to enable concretely reasonable dispositions according to the circumstances of each individual suspect. Hereinafter, even more appropriate operation of the system is expected in order to meet the expectations and achieve the trust of the people.
    At the same time, it is important to more directly reflect public opinion in the exercise of the public prosecution authority. The Inquest of Prosecution system was established to reflect public opinion in the exercise of the public prosecution authority in order to secure its fairness (the members of the Inquest are selected from the voters by lot) and has great significance as a part of the system of popular participation in the justice system. Although this system has been criticized on various grounds, it has played a considerable role. While paying attention to the guarantee of the due process of law for suspects, a system should be introduced that grants legally binding effect to certain resolutions of the Inquests of Prosecution in order to further expand the role of those Inquests, after thoroughly considering the structure, authority and procedures of the Inquests of Prosecution, as well as who files the indictments and conducts the prosecution at trial.


    4. Investigations and Trial Proceedings in the New Era

    As the society and the economy of Japan are in a period of rapid change, crimes are becoming more complicated, more heinous, more organized, and more internationalized. Conventional methods and means of investigation and trial proceedings, however, cannot fully respond to such a new environment, and criminal justice is facing a situation in which it will be difficult to play its role fully. Thus, while paying attention to international trends regarding the safeguard of human rights, consideration must be given to what the methods and means of investigations and trial proceedings should be in the new era, in order that the criminal justice system can properly achieve its essential role.

    (1) New Forms of Investigations and Trial Proceedings that Can Respond to the New Era

    With regard to the introduction of new investigative methods such as the immunity system, consideration should be given from multi-faceted viewpoints to what the proper system is for meeting the social and economic changes in Japan in the coming age and the corresponding changes in the crime situation and crime trends, while respecting the import of the guarantee of human rights in the Constitution.
    Measures to ensure the cooperation of witnesses and measures to protect witnesses should be considered, from similar points of view.
    The international mutual investigation and mutual judicial assistance systems should be further expanded and strengthened under the guarantee of due process of law.

    a. Introduction of New Investigative Methods including Immunity

    (a) Whether to Introduce the Immunity System
    The introduction of the investigative method of securing testimony through the immunity system is recognized as an effective measure against organized crime. (It can be an effective means of obtaining testimony concerning the internal circumstances of the organization, sources of funding, etc.) On the other hand, there are issues concerning whether the immunity system meets the legal sentiment and sense of fairness of the Japanese people, so it is difficult to reach an immediate conclusion on whether that system should be introduced. Thus, further consideration is needed on this issue from various standpoints.

    (b) Measures to Ensure Cooperation of Witnesses, Measures to Protect Witnesses
    As it goes without saying that the cooperation of witnesses is indispensable for criminal justice, measures to ensure the cooperation of witnesses will become even more important amid the changes in society in the coming age. This matter should be thoroughly considered from various viewpoints, giving some thought to the approach of expanding the system for pre-indictment examination of witnesses under existing law. On the other hand, as it is necessary to offer the witnesses who cooperate proper protection as a precondition to securing their cooperation, consideration also should be given to measures to protect witnesses.

    b. Expansion and Strengthening of International Mutual Investigation and Mutual Judicial Assistance Systems
    As mentioned above, crimes are becoming more internationalized, and it is frequently pointed out that it is necessary for all countries to effectively and efficiently prevent and eradicate crimes in a cooperative manner. Bearing this in mind the international mutual investigation and mutual judicial assistance systems should be expanded and strengthened, under the guarantee of due process of law.

    (2) Issues Related to Custody of Suspects and of Defendants

    Consideration should continue to be given to the reform and improvement of both the systemic and operational aspects, within criminal procedure as a whole, in order to prevent and rectify the improper custody of suspects and of defendants.
    A system should be introduced that imposes the duty of making a written record, for every occasion of questioning, regarding the process and the circumstances of the questioning, in order to ensure the propriety of questioning of suspects.

    a. Measures to Resolve Problems that Have Been Pointed Out Regarding Custody of Suspects and of Defendants
    Various concerns have been pointed out regarding the custody of suspects and of defendants, such as how daiyo kangoku (use of custody facilities in police stations in lieu of detention facilities) should be, possible introduction of pre-indictment bail system, how defense counsel's right to meet with suspects in detention should be, issuance of warrants, and how determinations with respect to requests for post-indictment release on bail should be (Recommendation of the United Nations Human Rights Committee, etc). It is difficult to reach a concrete immediate conclusion on these matters, because there are various ways of thinking arising from differences in assessments of the current state of affairs. Nevertheless, insofar as the mission of the Japanese criminal justice system is to get to the truth of the cases under the guarantee of due process of law, it is a matter of course that improper custody of suspects and of defendants must be prevented and rectified. While carefully examining the causes underlying the concerns that have been pointed out, consideration should continue to be given to the reform and improvement of both the systemic and operational aspects, within the whole structure of the criminal procedure.

    b. With Regard to Measures to Ensure the Propriety of Questioning of Suspects
    The questioning of a suspect, so long as it is conducted properly, contributes to the discovery of the truth, and, in the event the suspect who actually committed the crime truly regrets the crime and confesses, it also contributes to his or her rehabilitation.
    On the other hand, however, it cannot be denied that there are in reality some cases where questioning lacks propriety, arising out of an excessive emphasis on confessions of suspects. Insofar as the mission of the Japanese criminal justice system is to get to the truth of cases under the guarantee of due process of law, questioning of suspects must not be improper, and measures to prevent improper questioning naturally are necessary.
    Accordingly, a system should be introduced that imposes the duty of making a written record, for every occasion of questioning, regarding the process and the circumstances of the questioning. In connection with the introduction of such a system, necessary measures must be established to secure the accuracy and objectivity of such records (for example, an approach may be considered in which the matters to be recorded are specified, those matters are recorded on a form, and the record is then stored safely under a proper control system that prevents anyone from altering or revising the record at a later time).
    In addition, while there are some opinions that audio and video recording of the questioning itself and the attendance of the defense counsel at the questioning are necessary, it is difficult to decide with certainty whether to introduce such measures at this stage because careful attention should be paid to such measures with regard to the function and significance of the questioning of suspects in the whole structure of the criminal procedure. Thus, these should be regarded as matters to be considered in the future.
    Regardless of one's views on these various measures, an important point is that the establishment of the aforementioned public defense system for suspects will contribute to ensuring the propriety of questioning, through sufficient meetings between suspects and defense counsel. From this perspective, as well, the reinforcement of the public defense system should be undertaken.


    5. Rehabilitation of Offenders, Protection of Victims

    As the criminal justice system has played an important role in the rehabilitation of offenders, adequate attention should be paid to strengthening the system and the human resource structure for the correction and rehabilitation of offenders.
    Adequate attention should be paid to the protection of and relief for the victims in criminal proceedings, and studies necessary for that purpose should be undertaken. In addition, it is necessary to establish a broad social support system that includes psychological and material care for victims.

    The criminal justice system of Japan plays important roles in the reintegration of offenders into society and in the rehabilitation of offenders so that they do not commit crimes again. This not only contributes to the welfare of the offenders involved themselves, but also contributes to maintaining the peaceful order of the society as well as securing the safety of the people's lives. As such, these roles will become even more important in the future society, and adequate attention should be paid to strengthening the system and the human resource structure for correction and rehabilitation of offenders.
    Volunteer probation officers have played an important role in rehabilitation of offenders, in cooperation with (professional) probation officers; and the system of volunteer probation officers also has significance as a system for popular participation in criminal justice, in that volunteer probation officers engage in the service relating to the rehabilitation of offenders without pay as citizen volunteers. However, the difficulty of securing suitable persons due to the aging of the existing volunteer probation officers and other factors has been pointed out, so, in order to further strengthen this system, measures should be considered for securing suitable persons from a broad spectrum of the people to serve as volunteer probation officers, including the possibility of payment of expenses.
    On the other hand, in criminal justice, in the past little attention was paid to the viewpoint of safeguarding the rights of victims. Recently, however, as social concern for this issue has risen considerably, it is recognized anew that further attention and protection to victims and bereaved family members is called for, and measures are being taken for that purpose (establishment of the liaison conference for crime victims of the relative government agencies, enactment of two laws concerning the protection of crime victims). As it is important to pay adequate attention to the protection of and relief for victims in the criminal proceedings in order to ensure the trust of the people in the criminal justice system, necessary studies should be undertaken for further strengthening of measures. In addition, it is necessary to establish a broad social support system that includes psychological and material care for victims..



    Part 3. Responses to Internationalization

    In the 21st century, people will be clearly aware of the reality that our country is forced to find its way in a world where globalization is promoted in every sense. With the innovations in information technology, it will become common for tremendous amounts of information, funds and materials to frequently cross borders, and global interdependence and influence will grow remarkably stronger. As a result, we will be offered opportunities to act globally, while, like it or not, we will be involved in global competition and will watch it accelerate. Meanwhile, the framework of national sovereignties itself will be maintained. However, demands to alter or unify various systems and practices premised on national borders will grow inevitably stronger. At the same time, each country will be clearly aware of "the competition among systems" toward the establishment of a more attractive and safer national environment, because social and economic activities will be more likely to gravitate to the most favorable countries.
    In this era, it will become even more important for our country not just to respond passively to the global trends but rather to deepen the sharing of the values of the international community and to positively contribute to the formation and development of the international community, which is based on fair rules. At the same time, it is essential to form and maintain a free and fair society under the ideal of the rule of law that is full of creativity and dynamism and in which we accept diverse and differing opinions and lifestyles.
    Meanwhile, it is urgent to accurately check illegality based on clear and fair rules as well as to strengthen the role of the justice system in providing fair and prompt remedies to people whose rights or freedoms have been infringed and to reinforce the ability to respond globally. From the standpoint of global competitiveness and the ability of the Japanese social and economic system to meet the global environment, the justice system (legal profession) of our country will -- more than ever -- be required to actively respond to social needs and to make its presence felt in the provision of fair and prompt dispute resolution methods that support a free and fair society and efficient market system; accurate response to international organized crime and the management of various crises; the guarantee of human rights in every aspect of society; the establishment of corporate governance, including strategic risk management and respect for the law; the handling of intellectual property, information technology, and financial technology as a matter of national strategy; etc. Various reforms suggested in these Recommendations are essential from the standpoint of responding to globalization, but, here, these Recommendations will mainly focus on the following four points.

    1. Internationalization of Civil Justice

    In order to respond to the increasing number of international civil cases, the civil justice system should be further reinforced and speeded up, beginning with strengthening of comprehensive response to cases related to intellectual property.
    The arbitration system (including international commercial arbitration) should be coordinated quickly, paying heed to international trends.

    In this age of internationalization, responding to civil justice through thorough proceedings and prompt procedures takes on even greater importance and urgency. In particular, with regard to the reinforcement and speeding up of litigation concerning intellectual property, other countries regard this as part of their international strategy relating to intellectual property and are adopting various measures to promote it. Given this trend, Japan also must regard this as one of the most important issues that the government, as a whole, should address.
    Furthermore, with the rapidly expanding globalization of economic activities and e-commerce across borders, it is very important to resolve international civil and commercial disputes promptly. Therefore, the arbitration system, including international commercial arbitration, should be coordinated quickly, paying heed to such international trends as the review by the United Nations Commission on International Trade Law.

    2. Internationalization of Criminal Justice

    In order to respond to the increase in international crimes, international mutual investigation and mutual judicial assistance systems should be further expanded and strengthened.

    In criminal justice, the globalization of crimes will also advance, so the necessity for each country to cooperate and address the prevention and eradication of crimes both effectively and efficiently has often been pointed out. International mutual investigation and mutual judicial assistance systems should be further expanded and strengthened under the guarantee of due process of law.

    3. Promoting Legal Technical Assistance

    Legal technical assistance for developing countries should be promoted.

    It is essential for developing countries to coordinate the law as the basis of economic and social activities in order to achieve economic development and to build rich and stable societies based on democracy.
    Utilizing its own experience in having adopted modern legal systems from other countries and having established the legal system as well as the administration of that system in conformity with the circumstances of the country, Japan has been providing legal technical assistance by accepting trainees from Asian and other developing countries, dispatching professionals and conducting on-site seminars in the fields of civil law, commercial law and criminal justice. Such assistance is important in order for Japan to play a positive role as a member of the international society and also to contribute to the development of smooth economic activities in private sectors in the advancing globalization of society and the economy.
    Therefore, the government, lawyers and bar associations should cooperate as appropriate and continue to actively promote support for legal technical assistance for developing countries.
    It is also recommended to provide information abroad on the justice system and other matters even more actively and to share such information.

    4. Internationalization of Lawyers (the Legal Profession)

    In order to enable lawyers to fully respond to legal demands in a time of internationalization, responses to internationalization should be thoroughly strengthened by improving specialization, strengthening business structure, promoting international exchange, and considering the demands of internationalization in the legal training stage.
    From the standpoint of promoting collaborations and cooperation between Japanese lawyers and foreign law solicitors (gaikokuho jimu bengoshi), etc., the requisites for specified joint enterprises, for example, should be relaxed.

    In the areas of personal activities and business activities, one can easily foresee that international legal problems will increase in quantity and will become more complicated and more diversified in content. Therefore, lawyers should be enabled to offer quality legal services to meet legal demands in a time of internationalization.
    From this standpoint, lawyers' response to globalization should be thoroughly strengthened by greatly increasing the number of lawyers, strengthening the business structure of law offices, promoting the international exchange of lawyers, promoting collaborations and cooperation with foreign law solicitors (gaikokuho jimu bengoshi; hereinafter referred to as GJB), etc., and promoting attention to the demands of internationalization in the legal training stage. As for the review of the GJB system and the management thereof, prompt and thorough consideration should be given from the users' point of view, bearing in mind international discussion. Specifically, from the standpoint of actively promoting collaborations and cooperation between Japanese lawyers and GJB, requisites for specified joint enterprises (under the existing system, these are joint ventures for the purpose of having Japanese lawyers and GJB perform legal work involving an international aspect under certain conditions stipulated by law) should be relaxed. Continued consideration should be given to abolishing the prohibition on the employment of Japanese lawyers by GJB, as a matter for the future, paying heed to the international discussion.



    Chapter III. How the Legal Profession Supporting the Justice System Should Be



    It is people who operate a system. In realizing thoroughgoing reforms of the justice system to respond to the new age in a fruitful way, as set forth in these Recommendations, if the human base that actually carries out the reforms is not well developed, the new system cannot be expected to function fully.
    Moreover, to coordinate the human base to support the justice system of the 21st century, in which legal demands are anticipated to become further diversified and to become more complicated in various aspects of life, it is essential to substantially raise both the quality and quantity of the legal profession (judges, prosecutors and lawyers). First, with regard to the qualitative aspect, the legal profession bearing the justice system of the 21st century will be required to be equipped with such basics as rich humanity and sensitivity, broad education and expertise, flexible mentality, and abilities in persuasion and negotiation. It will also need insight into society and human relationships, a sense of human rights, knowledge of up-to-date legal fields and foreign law, an international vision and a firm grasp of language.
    On the other hand, with respect to the quantitative aspect, compared with other developed countries, the population of Japanese legal professions is extremely small, both in total number and in the number of new entrants through the national bar examination and the apprenticeship training system; and the legal profession truly cannot respond adequately to the legal demands of our society. When one also thinks of the increases in legal demands in the future, it is clear that substantially increasing the size of the legal profession is an urgent task.
    In addition, it is also important to promote human exchanges among legal professionals (judges, prosecutors, lawyers and legal scholars) in order to form and nurture a justice system (legal profession) that can genuinely meet the public's expectations and trust.


    Part 1. Expansion of the Legal Population

    1. Substantial Increase of the Legal Population

    Increasing the number of successful candidates for the existing national bar examination should immediately be undertaken, with the aim of reaching 1,500 successful candidates in 2004.
    While paying heed to the progress of establishment of the new legal training system, including law schools, the aim should be to have 3,000 successful candidates for the new national bar examination in about 2010.
    Through the progress of these types of increases in the legal population, by about 2018, the number of legal professionals actively practicing is expected to reach 50,000.

    With regard to the legal population in Japan, the 1964 Special Judicial System Examination Committee, in its opinion, demanded that "the population of legal professionals be gradually increased, while making sure not to cause a deterioration in quality, so as to reinforce and improve the proper and smooth operation of justice and the legal lives of the people, because the number of legal professionals as a whole is deemed to be considerably insufficient." That was the year when the number of successful candidates for the national bar examination exceeded five hundred for the first time since the end of World War II, but thereafter the number stayed nearly unchanged, remaining at around five hundred until 1990. Then, from 1991, the number gradually increased and finally reached 1,000 in 1999. The total number of legal professionals was 20,730 in 1999. (Incidentally, compared internationally, the legal population [in 1997] was around 20,000 in Japan [approximately 6,300 people per legal professional], around 941,000 in the United States [approximately 290 per legal professional], around 83,000 in Britain [approximately 710 per legal professional], around 111,000 in Germany [approximately 740 per legal professional], and around 36,000 in France [approximately 1,640 per legal professional]; and the number of persons newly acquiring legal qualification per year was around 57,000 in the United States [1996-1997], around 4,900 in Britain [barristers 1996-1997, solicitors 1998], around 9,800 in Germany [1998], and around 2,400 in France [1997]).
    However, in the future, legal demands in various aspects of the people's lives are expected to increase in number and also to become more diverse and more complicated. The reasons for this are too numerous to mention, but include advances in economic and financial globalization and the response to global issues such as human rights, environmental issues and international crimes; increases in litigation requiring specialized knowledge in such fields as intellectual property rights, medical malpractice, and labor problems; the necessity to redress the imbalance in lawyer population across geographical regions (solving the problem of so-called "zero-one regions" [referring to regions in which there is either only one lawyer, or no lawyer at all, within the jurisdictional area of a district court or district court branch]) as a precondition for realizing "the rule of law" throughout Japan; and the expansion of the role of the legal profession as "doctors for the people's social lives," against the backdrop of changes in the society and economy and changes in public awareness.
    To respond to these various factors, greatly increasing the legal population is an urgent task. The way of thinking that takes it for granted that the number of successful candidates on the national bar examination is a matter to be decided by deliberation among the three branches of the legal profession is already a relic of the past. The essential task is to secure and improve, both in quality and in quantity, the legal profession needed by the people of Japan.
    From such a point of view, with regard to the legal population, this Council considers it necessary to aim, deliberately and as soon as possible, to secure 3,000 new entrants to the legal profession annually. Specifically, increasing the number of successful candidates for the existing national bar examination should be embarked upon immediately, by raising the level to 1,200 in 2002 and so forth, with the aim of reaching 1,500 successful candidates in 2004. Furthermore, the aim should be to have 3,000 successful candidates per year for the new national bar examination around 2010, when the full switchover to the new system is scheduled to occur (for details, see Part 2, "Reform of the Legal Training System," below), paying heed to the progress of establishment of the new legal training system, including law schools, which aim to accept students from 2004. If this process of increasing the legal population succeeds, the number of legal professionals in active practice is expected to reach 50,000 (with the number of people per legal professional being around 2,400) by 2018.
    The number of legal professionals who actually work in various fields of the society is to be decided by the market principle, which is based on social demand. So it is necessary to note that securing 3,000 successful candidates for the national bar examination annually is a goal to be achieved "deliberately and as soon as possible," and this number does not signify the upper limit.

    2. Reinforcing the Personnel Structure of the Courts and Public Prosecutors Offices

    In the process of increasing the legal population as a whole, the number of judges and prosecutors should be increased greatly.
    While pushing to improve even further the quality and ability of court staff, including court clerks, and the staff of public prosecutors offices, including public prosecutors' assistant officers, appropriate increases in the number of staff should also be sought.
    From the standpoint of smoothly carrying out administrative reforms, as well, it is indispensable to dramatically increase the human base supporting the justice system, so it is necessary to take bold and positive measures for that purpose, including legislative steps.

    (1) Judges
    When looking at the situation of the personnel structure of the courts, one may point to serious problems, such as the excessive burden on judges and the prolongation of large-scale cases resulting from the insufficient number of judges. As discussed previously, (i) it is necessary to carry out measures such as the promotion of planned proceedings and expansion of procedures for the gathering of evidence, in order to seek even more full and more prompt processing of civil cases, with the aim of reducing the duration of proceedings in civil cases by about half; (ii) as for criminal cases, as well, new preparatory proceedings should be established and trials normally must be held on a continuous basis, because even more thorough and more prompt trials will be demanded in connection with the introduction of the new system for popular participation; (iii) various reforms of the judge system (see Part 5 below) must be realized; and (iv) the number of cases is expected to increase even further as a result of changes in social and economic situations.
    To respond to such institutional reforms and other matters, it is essential that, in the process of increasing the legal population as a whole, the number of judges be increased greatly.
    (Note) In connection with this point, the Supreme Court made initial calculations that indicate the necessity to have five hundred more judges during the next ten years if the number of cases proceeds at nearly the present rate; and if the number of cases increases further, the number of judges must also increase accordingly (for example, by around three or four hundred if the number of cases increases 1.3 times).

    (2) Prosecutors
    On the other hand, when looking at the situation of the personnel structure of the public prosecutors offices, it has been pointed out that, due to the insufficient number of prosecutors, the harm has arisen that public prosecutors offices cannot fully respond to economic cases, cases sent from primary investigative agencies such as the police, and complaints and accusations. It is further pointed out that, due to the insufficient number of prosecutors, the so-called passing-down of authority phenomenon has arisen, in which many of the cases of the district public prosecutors offices, albeit primarily relatively minor matters, that are supposed to be handled by public prosecutors are instead left to assistant public prosecutors, and that at the same time cases of the local public prosecutors offices that are supposed to be handled by assistant public prosecutors are instead handled by public prosecutors' assistant officers.
    To enable prosecutors to respond to public expectations and to perform their functions and exercise their authority appropriately and fully, (i) the investigation structure for cases referred from police and for complaints and accusations should be reinforced; (ii) coping with economic crime cases should be strengthened; (iii) in addition, as even more thorough and more prompt trials will be demanded in connection with the introduction of the new system for popular participation in criminal cases (see Part 1-1 of Chapter IV, "Establishment of the Popular Base of the Justice System," below), and, in order to respond fully to the establishment of new preparatory proceedings and the more strict observance of the principle of holding trials on a continuous basis, it will be necessary to reinforce the structure for investigations and trials; and (iv) various reforms concerning the prosecutor system must be carried out (see Part 4 below).
    To respond to such institutional reforms, it is essential that, in the process of increasing the legal population as a whole, the number of prosecutors be increased greatly.
    (Note) The Ministry of Justice has expressed the opinion that it will be necessary to increase the number of prosecutors by 1,000 to carry out these institutional reforms.

    (3) Staff of Courts and of Public Prosecutors Offices
    In order to enable judges and prosecutors to perform their functions and exercise their authority fully, it is essential to reinforce and strengthen the system of supporting staff, such as court clerks and other court personnel, and public prosecutors' assistant officers and other staff of public prosecutors offices. So, while pushing to improve even further the quality and ability of such related staff, appropriate increases in the number of staff should also be sought.

    (4) Other Related Staff
    In order to expand the justice function as a whole, it is necessary to give full heed to reinforcing and strengthening the human base for achieving the realization of the results of trials, namely, the court-related personnel engaged in execution for civil trials, the corrections and probation staff of the Ministry of Justice engaged in execution for criminal trials, and the litigation-related staff of the Ministry of Justice directly supporting administrative litigation.
    As reflected in the gist of the final report of the Administrative Reform Commission referred to earlier (see Part 3-3 of Chapter I, "Fundamental Philosophy and Directions for Reform of the Justice System," above), reform of the justice system also is in line with the fundamental ideals of administrative reform. An important task of administrative reform is to decrease the total number of government personnel, but, from the standpoint of smoothly carrying out administrative reforms, as well, it is indispensable to dramatically increase the human base supporting the justice system, and for that purpose it is necessary to take bold and positive measures, including legislative steps.


    Part 2. Reform of the Legal Training System

    1. Development of a New Legal Training System

    A new legal training system should be established, not by focusing only on the "single point" of selection through the national bar examination but by organically connecting legal education, the national bar examination and legal training as a "process." As its core, law schools, professional schools providing education especially for training for the legal profession, should be established.
    Law schools should be established, with the aim of starting to accept students as of April 2004.

    How should we foster a legal profession rich in both quality and quantity, fit to support the justice system in the 21st century?
    With respect to this problem, we should consider whether the current legal training system can sufficiently satisfy the above-mentioned demands. While the current national bar examination system has the advantage of being open to anyone, it is still very hard for candidates to pass the examination, although the number of successful candidates has been gradually increasing. For this reason, candidates have become more prone to give priority to acquiring techniques for passing the examination. Furthermore, achieving a substantial increase in the number of successful candidates while maintaining their quality under the current system would entail major difficulties and would face other problems. There is a limit to solving these problems simply by improving the contents or methods of the examination.
    On the other hand, conventional legal education at universities has not necessarily been sufficient in terms of either basic liberal arts education or specialized legal education. Moreover, partly because at the undergraduate stage (law faculties of universities), the major purpose of education has been to send people with a certain level of legal education into various sectors in society, while at the postgraduate stage (postgraduate schools), the major purpose has been to train academic researchers, it has been pointed out that there exists a gap between education and actual legal practice. Accordingly, it is difficult to say that law faculties and postgraduate schools have played a proper role in fostering the legal profession as a profession. In addition, amid the increasingly fierce competition to pass the bar examination, students have become increasingly dependent on preparatory schools, which has caused the situation referred to as the "double school phenomenon" (trend of going to two schools, the university and the preparatory school) or the "phenomenon of leaving universities" (daigakubanare; the tendency to ignore university classes and focus only on preparatory schools); and this has had a serious adverse impact on securing the quality of those who are to become legal professionals.
    As to the former problem, it might be thinkable to cope with it, for example, simply by significantly increasing the number of successful candidates for the existing bar examination. However, in that case, not only might the problems mentioned above regarding the current legal training system be left unimproved, but the fear exists that the situation might be further exacerbated.
    From another point of view, there might be an opinion that this problem could be solved by somehow thoroughly improving the undergraduate legal education at the law faculties of universities so as to contribute to fostering the legal profession. However, this view leaves out of consideration the fact that the law faculties of universities, which have a far larger number of enrollees (about 45,000 in 2000) than the number of people who will become legal professionals, have their own significance and function of sending a large amount of human resources to various sectors in society; and this view seems to lack practical validity.
    Taking those points into consideration, in order to overcome the problems of the current system mentioned above as well as to establish the human base necessary for the justice system (legal profession) to play its role as sufficiently as expected in Japanese society in the 21st century, it is essential to develop a new legal training system not by focusing only on the "single point" of the national bar examination but by organically connecting legal education, the national bar examination, and apprenticeship training as a "process," while paying close heed to the relationship with the basic problems of how the legal profession should be, such as the increase in the population of legal professionals and reform of the lawyer system. As the core of the new system, it is considered to be important and effective to establish law schools, professional schools providing education especially for training legal professionals, of the type outlined below. In view of the target of increasing the population of the legal profession, law schools should be established with the aim of starting to accept students as of April 2004; and necessary readjustment should be made of the national bar examination and other related systems accordingly.

    2. Law Schools

    (1) Purpose and Philosophy

    a. Purpose
    Law schools shall be core advanced specialized educational institutions for the purpose of establishing the human base necessary for the justice system to play its expected role fully in Japanese society in the 21st century, in association with the national bar examination and apprenticeship training.
    b. Educational Philosophy
    Education for training professionals at law schools should comprehensively achieve the following philosophy, building a bridge between theoretical education and practical education, and focusing on fairness, openness and diversity.
  • Enable law students to acquire the specialized qualities and capacity required for legal professionals who take direct responsibility for the "rule of law" and are expected to play a role as the "doctors for the people's social lives," and foster and improve their human nature as persons with kind hearts who can deeply sympathize with the happiness and sorrows of people who are going through their one and only life.
  • Enable law students to acquire specialized legal knowledge as well as foster their creative thinking ability to critically review and develop such knowledge and their capacity for legal analysis and legal discussion necessary for solving actual legal problems according to the facts.
  • Provide law students with basic understanding of cutting-edge legal areas, have them take a broad interest in various problems arising in society and have a sense of responsibility and morals as legal professionals based on their contemplation of how human beings and society should be and on their own actual observations and experiences, and also provide them with opportunities for actually contributing to society.

    c. Basic Principles in Designing the System
    The law school system should be designed based on the following points, aiming at achieving the above-mentioned philosophy.
  • Establish law schools under the condition of securing the proper level of education and based on the voluntary creative efforts of the parties concerned, in a manner so that they are properly located throughout Japan.
  • Clearly define the relationship between education provided at law schools and education provided at law faculties of universities.
  • Provide a broad and highly specialized education that can meet the needs of the new society as well as seek to fuse legal education with legal practice.
  • Connect the education at law schools organically with the national bar examination and apprenticeship training on the premise that at least on-site training in legal practice should be separately implemented.
  • For effectively providing such education and fostering highly specialized professionals with social responsibility, closely cooperate with the world of practice by accepting the proper participation of practicing lawyers and others with legal experience as teachers, and make arrangements for achieving broad exchange with the real world.
  • Selection of applicants should be open and fair with adequate attention to students from other faculties and universities as well as to working people and others.
  • Make arrangements for effectively securing the opportunity to be a legal professional for those with limited funds, working people and residents in areas other than those where law schools are to be located.
  • For securing proper operation of law schools and maintaining and improving the educational level there, take necessary institutional measures such as establishing a fair and transparent evaluation system.


    (2) Main Points of the Law School System

    a. Form of Organization

    Law schools should be established as postgraduate schools, under the School Education Law, where practical education especially for fostering legal professionals will be provided.
    Independent law schools (those with no organizational basis in a university law faculty) and joint law schools should be recognized under the system.

    Law schools should be established as postgraduate schools, under the School Education Law, where practical education especially for fostering legal professionals will be provided. The law schools should not necessarily be located in existing universities, and it is naturally possible for them to be established as private educational institutions incorporated by entities other than universities, such as bar associations and local public bodies, provided that such institutions meet the requirements for establishment of law schools. It is expected that the competition between law schools located in existing universities and such new types of law schools will develop a flexible system in which each law school can foster diversified legal professionals of the type it regards as ideal.
    With respect to forms of organization of law schools, those with no organizational basis in a university law faculty (independent law schools) and those established jointly by several universities (joint law schools) should be recognized under the system, in addition to those with an organizational basis in a university law faculty. Needless to say, it is incumbent on universities with the intention of establishing law schools to make considerable efforts to change themselves by shifting their principle from the traditional one focusing on research and study to a new one truly focusing on education of students.

    b. Standard Training Term

    The standard training term should be three years, and completion in two years as a shortened term should be recognized.

    The standard training term should be three years, while those students who are considered by the law school to have basic legal knowledge required for law school (those who have already studied law, whether or not they are graduates of a university law faculty) should be allowed to complete the course in two years as a shortened term.

    c. Selection of Applicants

    Applicants should be judged and selected, with the principle of securing fairness, openness and diversity, by considering not only their admission examination results but also their grades at undergraduate schools and actual performances comprehensively.
    For expanding diversity, students from faculties other than law and working people, etc., should be admitted, in a number that exceeds some certain percentage of the total number of enrollees.

    Applicants should be judged and selected, with the principle of securing fairness, openness and diversity, by considering not only their entrance examination results but also their grades at undergraduate schools and actual performances comprehensively. However, the issues of how these factors should be evaluated or how much value should be put on each factor in judging applicants shall be left up to the independent judgment of each law school according to its own educational philosophy.
    The legal profession in the 21st century should include a wide variety of people who have learned academic areas other than law, such as economics, science and mathematics, and medicine. In order to admit into the legal profession a number of people with various backgrounds including those with working experience, law schools should admit various applicants irrespective of their field of specialization at undergraduate schools as well as open their doors to working people and others. For achieving this, law schools should take such measures as admitting at least a certain percentage of graduates from faculties other than the law faculty and from among working people, etc. It is desirable that the percentage be reviewed as appropriate, aiming at expanding diversity, while considering the trend of applicants. As for qualifications for application, the usual qualifications for admission to postgraduate schools shall apply to law schools. Accordingly, applicants in principle should have completed the undergraduate program. However, those who have not completed such a program shall be able to be certified as eligible for application by passing the admissions review process carried out by each law school.
    As an admission examination, law schools should give an aptitude test (judging not applicants' legal knowledge but their abilities to judge, think, analyze and express themselves, which are demanded as preconditions for study at law schools) to all applicants whether or not they have already studied law. In the case of law schools allowing people who have already studied law to complete the course in a shorter period (two years), such schools should give the applicants for enrollment as those who have already studied law a legal subject examination (to determine whether they possess basic knowledge sufficient to skip the basic legal subjects at law schools), and give consideration to how to organize each examination for that purpose. In this connection, it is appropriate for all law schools to implement a uniform aptitude test, and the legal subject examination may also be uniformly implemented. Other issues such as whether a short essay or interview shall be required in addition to the aptitude test and legal subject examination or in what ratio the scores should be allocated in the case of combining these tests all together shall be left up to the independent judgment of each law school.

    d. Educational Content and Methods

    Law schools should provide educational programs that, while centered on legal theory, introduce practical education (e.g., basic skills concerning how to determine the required elements and fact finding), with a strong awareness of the necessity of building a bridge between legal education and legal practice. With respect to educational methods, the small group education system should be adopted as the basic policy, providing bi-directional (with give-and-take between teacher and students) and multidirectional (with interaction among students) educational programs rich in content.
    Law schools should provide thorough education so that a significant ratio of the students who have completed the course (e.g., 70 to 80% of such students) can pass the new national bar examination.
    Specific measures should be taken to ensure that the students' grades are strictly evaluated and their completion of the course is rigidly certified in an effective manner.

    The minimum uniformity in educational programs and the academic level required for training legal professionals should be secured by defining the standards for required subjects and for employment of teachers, while, in terms of actual subjects to be taught and their contents, the originality and diversity of inventive efforts by each law shall be respected. Law schools are expected to improve their educational programs by competing with each other.
    Law schools should provide educational programs that, while centered on legal theory that takes into consideration reasonable solutions to problems arising in the world of practice, introduce practical education (e.g., basic skills concerning factual requirements or fact finding), with a strong awareness of the necessity of building a bridge between legal education and legal practice on the basis of systematic legal theory. From this point of view, teachers who are researchers and teachers who have practical experience (practitioner-teachers) need to cooperate with each other in joint activities concerning programs and methods for classes and selection and production of teaching materials.
    As educational methods (methods for providing lessons) at law schools, such methods as lectures and seminar-type classes, research or surveys and research/survey reports submitted in writing or orally, and individual educational guidance provided by assistant teachers should be used as appropriate. In particular, the small group education system should be adopted as the basic policy.
    Furthermore, classes at law schools must not simply be one-way lectures, but should be bi-directional (with give-and-take between teacher and students) or multidirectional (with interaction among students, as well) and rich in content. They should be provided in as concentrated manner as possible by adopting the semester system (with each course concluding within one semester).
    In light of the purpose of developing a new legal training system as a "process" instead of only through the "single point" of the bar examination, law schools should be designed in such a manner that the students can concentrate on their coursework while in school. In this respect, on the essential condition that people with the ability and motivation to become legal professionals are admitted to law schools and their grades are strictly evaluated and their completion of the coursework is rigidly certified, productive educational programs should be provided so that a certain ratio of those who have completed the course at law schools (e.g., 70 to 80%) can pass the new national bar examination discussed later. In order to evaluate students' grades strictly and certify their completion of the coursework rigidly, specific measures should be taken to ensure the effectiveness of such evaluation and certification.

    e. Organization of Teachers

    At law schools, a sufficient number of teachers should be secured to provide small group classes that are rich in content.
    As for the number and ratio of practitioner-teachers, a fair standard should be defined, considering the contents of the curriculum and the allocation of the legal training between the law schools and the apprenticeship training, after the new national bar examination is implemented.
    Restrictions on having multiple jobs or a side job and other provisions of the Lawyers Law and the Public Servants Laws should be reviewed or revised as necessary.
    Standards for qualification as a teacher should be set considering to a large degree the actual educational performance or ability and capacity and experience as a practitioner.

    With respect to the organization of teachers, law schools should secure enough full-time and other teachers to provide small group classes that are rich in content.
    Since law schools should provide highly advanced legal education especially for training legal professionals in order to build a bridge between theoretical education and practical education, participation of practitioner-teachers is indispensable. As practitioner-teachers, not only those included in the legal profession within a narrow sense, but also those who are otherwise qualified, should be broadly recruited.
    As for the number and ratio of practitioner-teachers, a fair standard should be defined, considering the contents of the curriculum and the allocation of the legal training between the law schools and the apprenticeship training, after the new national bar examination is implemented.
    At the same time, with respect to practitioner-teachers, even those who are full-time teachers, it is necessary to consider the flexible application of the standards relating to the term of appointment and working pattern. Furthermore, in order to facilitate appointment of practitioner-teachers, restrictions on having multiple jobs or a side job or other provisions of the Lawyers Law and the Public Servants Laws should be reviewed or revised as necessary.
    With respect to appointment of practitioner-teachers by law schools, while recognizing the autonomy of each university in selecting its own teachers, it is necessary to develop a cooperative system with the three branches of the legal profession (courts, public prosecutors offices, and bar associations) for sending practitioner-teachers, in order that the needed number of teachers can be constantly secured.
    In the case of evaluating whether teachers are qualified to teach at law schools, whether they are researcher-teachers or practitioner-teachers, standards for qualification as teachers at law schools should be set considering to a large degree the actual educational performance or ability and capacity and experience as a practitioner.
    Law schools are postgraduate schools providing education especially for training legal professionals, but as a matter of form they are compatible with postgraduate schools for training succeeding researchers (law graduate courses or divisions thereof), and, in substance, it is desirable that law schools conduct productive education and research in association with such other postgraduate schools. On the other hand, for the future, teachers at law schools, at least those in charge of basic law (jitteiho) courses, are expected to be qualified as legal professionals.
    Each law school will hire its teachers on its own. In doing so, it is desirable that each law school try to appoint teachers putting emphasis on educational ability, desire to teach, and actual teaching performance, as well as to make arrangements to improve mobility and diversity of teachers.
    In order to enable smooth transition to the new system, flexible and realistic application of the above-mentioned standards on organization of teachers should be appropriately considered.

    f. Degree

    Consideration should be given to establishing a new degree granted only by law schools (specialist degree).

    As a degree granted to the students who have completed the course, consideration should be given to establishing a new degree granted only by law schools (specialist degree), taking its international availability and currency into account.


    (3) Securing Fairness, Openness and Diversity

    Attention should be paid to proper geographic distribution of law schools throughout the country, taking local situations into consideration.
    Evening law schools or distance law schools should be developed.
    Various support systems such as scholarships, educational loans, and a tuition exemption system should be sufficiently developed and utilized.

    Attention should be paid to proper geographical distribution of law schools throughout the country, taking local situations into consideration; and efforts should also be made to secure fairness, openness and diversity of law schools to facilitate working people and others to take the course in various ways such as through evening schools. With respect to distance law schools, though there are still tasks yet to be reviewed in connection with the educational methods at law schools, positive measures are required to cope with such tasks with a view to development of highly advanced information and telecommunications technology.
    To avoid the situation where it is hard for those with limited funds to be admitted to law schools due to financial difficulty, various support systems such as scholarships, educational loans and a tuition exemption system should be sufficiently developed and utilized.
    As for the funding needed for establishment and operation of law schools, including meeting the human and physical conditions for law schools, proper public support shall be required, based upon the results of appropriate evaluation, considering the significance and role of law schools, which will play an important part in improving the human base of the justice system, while also paying attention to the current difficult financial situation.
    Adequate attention is required for active acceptance of students from overseas as a part of the measures for internationalization of the justice system as well as the international contribution through support for development of laws in foreign countries.


    (4) Procedures for Chartering and Third Party Evaluation (Accreditation)

    Law schools shall be chartered, based on the voluntary creative efforts of the parties concerned, if they meet the requirements for establishment, and widespread participation of schools should be permitted.
    In order to secure fairness, openness and diversity in selection of enrollees; the meeting of educational standards required for legal training institutions; and strictness regarding grade evaluation and certification of completion of the coursework, a proper organization should be established to continuously conduct third party evaluation (accreditation).
    In designing the structure of the organization to conduct third party evaluation, objectivity, fairness and transparency should be secured by means of participation of external well-informed persons in addition to those involved with the legal profession and schools.

    Law schools shall be chartered, based on the voluntary creative efforts of the parties concerned, if they meet the requirements for establishment, and widespread participation of schools should be permitted. The standards should be suitable for the mission of law schools as a core institution for training legal professionals.
    Furthermore, in order to secure fairness, openness and diversity in selection of enrollees; the educational standards required for legal training institutions; and strictness of grade evaluation and certification of completion of the coursework, a proper organization should be established to continuously conduct third party evaluation (accreditation).
    The third party evaluation (accreditation) system for law schools, though being closely associated with the chartering for establishing law schools and the qualification of candidacy for the bar examination, has its own significance and function independent from such elements, in that it exists to maintain and improve the level of law schools as core institutions of the new legal training system. Accordingly, in developing and applying the evaluation (accreditation) standards, the mutually organic connection among all these elements should be secured, taking each element's significance and function into consideration.
    In designing the structure of the organization to conduct third party evaluation, objectivity, fairness and transparency should be secured by means of participation of external well-informed persons in addition to those involved with the legal profession and schools.

    (5) Future Vision of Undergraduate Legal Education

    Education at undergraduate law faculties after the introduction of law schools is expected to be vitalized as a whole in a situation where universities compete with each other in developing their own characteristics and identities.
    With respect to the term for completion of programs at the undergraduate stage, it is desirable that the so-called grade-skipping system be applied as appropriate.

    Currently, about 45,000 students each year study law at undergraduate law faculties in 93 universities throughout Japan. The function of these law faculties, to produce and send human resources, in addition to candidates for legal professionals, to various sectors in society, will not change even after the introduction of law schools. Education at undergraduate law faculties after the introduction of law schools is expected to be vitalized as a whole in a situation where universities compete with each other in developing their own characteristics and identities by taking creative measures to divide the burden of legal education with law schools or by aiming at providing broad educational programs through introduction of, for example, the "academic minor" system, with basic legal education as the base.
    With respect to the term for completion of programs at the undergraduate stage, it is desirable that a system be applied as appropriate whereby those who have achieved excellent records are permitted to complete the program earlier (the so-called grade-skipping system).

    (6) Responsibility of Parties Concerned
    Law schools should play the role of training high quality legal professionals who will lead the justice system in the 21st century. To ensure the fruitful realization of that end, significant labor, time and funds should be invested in human and physical resources, including teachers, educational programs and methods. The responsibility of those involved with universities and with the legal profession is grave, and, with a deep appreciation for the graveness of that responsibility, those parties must devote efforts to the establishment and operation of law schools.


    3. National Bar Examination

    The national bar examination should be transformed into a new one that responds to the educational programs at law schools.
    A specific system should be established to ensure the interrelationship between the new national bar examination and the educational programs at law schools.
    Those who have completed the course at law schools that have achieved accreditation should be awarded the qualification of candidacy for the new national bar examination.
    Proper routes for obtaining the qualification of legal professional should be secured for those who have not gone through law schools for reasons such as financial difficulty or because they have sufficient practical experience in the real world.
    In the case of those who have completed the course at law schools that have achieved accreditation, the number of times one is allowed to take the new national bar examination should be limited, e.g., to three times.
    The new national bar examination should be introduced as an examination aimed at the first candidates to complete the course at law schools, which is projected to occur in 2005.
    For about five years after the introduction of the new national bar examination, the current national bar examination should be implemented in parallel to the new examination.
    The priority system for determining successful candidates on the existing national bar examination (Plan Hei) should be abolished in 2004, when the number of successful candidates for the current examination is expected to reach 1,500.

    (1) Basic Nature
    From the standpoint of switching the selection system based only on a "single point" into a new legal training system based on a "process," the national bar examination should be switched over to a new system that will take into account the educational programs at law schools, which will constitute the core of the new legal training system.

    (2) Method and Contents of the New Bar Examination
    On the condition that thorough educational programs will be provided and strict grade evaluation and certification of completion of the coursework will be ensured at the law schools, the new national bar examination should be designed taking the educational programs at law schools into account, and should have the purpose of judging whether candidates who have sufficiently mastered the educational programs and completed the coursework at law schools are equipped with enough knowledge and abilities to think, analyze and express themselves so as to be qualified to start practice as legal professionals if they take the apprenticeship training provided following the examination.
    The new national bar examination might, for example, be designed as an examination for which a long period of time is provided, based on example cases composed of diversified and complex facts, without necessarily being bound by the traditional subject categories, mainly for evaluating in an adequate manner such abilities as the abilities to analyze matters, to think logically, and to interpret and apply laws by requiring candidates to demonstrate how to solve problems, how to prevent conflicts, how to design plans, and the like.
    For securing the corelationship between the new national bar examination and the educational programs at law schools, such mechanisms should be established as, for example, having opinions of parties involved in law schools as well as external well-informed persons be appropriately reported to and reflected in the National Bar Examination Administration Commission.

    (3) Qualification of Candidacy for the Examination
    Considering that a proper third party evaluation system will be established in connection with the introduction of the law school system, those who have completed the course at law schools that have achieved accreditation under that system should be awarded qualification for candidacy for the new national bar examination.
    Proper routes for obtaining the qualification of legal professional should be secured for those who have not gone through law schools for reasons such as financial difficulty or because they have sufficient practical experience in the real world. Accordingly, after the transitional steps discussed below have ended, such measures can be taken as, for example, awarding the qualification of candidacy for the new bar examination to those who have passed a preliminary examination for evaluating basic knowledge and understanding of a wide range of law, as long as the purpose of the new legal training system having law schools as its core will not be hampered. (In this case, it may be worth considering providing an opportunity for properly examining whether, as a result of their practical experience in the real world, candidates are equipped with basic qualities and abilities comparable to those that are to be acquired in the educational programs at law schools.)
    In any case, it is needless to say again that the basic viewpoint of the current reform of the legal training system is to train through a "process" human resources equipped with qualities and abilities suitable for supporting the justice system in the 21st century, and that efforts especially should be made to develop an environment where diverse people can study at law schools without any difficulty, in accordance with their individual circumstances.
    In light of the spirit of the law school system and new national bar examination system mentioned above, in the case of those who have completed the course at law schools that have achieved accreditation, the number of times one is allowed to take the new national bar examination should be limited, e.g., to three times. In the event measures are established recognizing the qualification of candidacy for the new national bar examination to those who have passed a preliminary examination, further consideration must be given with respect to the number of times such candidates will be allowed to take those examinations.
    In the event the National Bar Examination Administration Commission has recognized the qualification of candidacy for the new national bar examination to those who have completed the course at a law school based on accreditation under the third party evaluation system, and the accreditation of that law school is revoked by the organization conducting the third party evaluation, due consideration should be made to avoid imposing unexpected disadvantages to the students of such law school with respect to acquisition of the qualification of candidacy for the new national bar examination.

    (4) Transitional Measures
    The new national bar examination should be introduced as an examination aimed at the first candidates to complete the course at law schools in the shortened two-year term, which is projected to occur in fiscal year 2005. As a transitional step until the completion of switchover to the new system, the current national bar examination should continue to be conducted in parallel to the new national bar examination for a period of about five years, so as not to impose undue disadvantages on the candidates who have been preparing for the current national bar examination.
    The priority system for determining successful candidates on the existing national bar examination (Plan Hei) should be abolished in 2004, when the number of successful candidates for the current examination is expected to reach 1,500.


    4. Apprenticeship Training

    Apprenticeship training provided after the introduction of the new national bar examination should be designed to cope effectively with the increase in the number of judicial apprentices. At the same time, properly devised training programs should be provided, in light of the educational programs at law schools, placing on-site practical training at the core.
    The stipend system should be reconsidered.
    With regard to the administration and operation of the Legal Training and Research Institute, the cooperative relationship among the three branches of the legal profession should be further strengthened, and mechanisms should be established whereby opinions of persons involved in law schools as well as external well-informed persons will be appropriately reflected.

    (1) Training Programs
    Apprenticeship training provided following the new national bar examination should be designed to cope effectively with the increase in the number of judicial apprentices. At the same time, in light of the educational programs at law schools, properly devised training programs should be provided, placing on-site practical training at the core.
    How the burden of legal education should be allocated between the group training (the first stage at the Legal Training and Research Institute) within the apprenticeship training program provided following the new national bar examination and the educational programs provided at law schools should continue to be readjusted as appropriate in the future as the law school system is being developed and taking root.

    (2) The Stipend System
    With respect to the system whereby wages are paid to the judicial apprentices (the stipend system), observations have been made that this system should be switched over to a scholarship loan system or abolished in the future. Studies should be made on how the system should be, considering the significance of the apprenticeship training system within the entire new legal training system.

    (3) Legal Training and Research Institute
    With regard to the administration and operation of the Legal Training and Research Institute, the cooperative relationship among the three branches of the legal profession should be further strengthened, and mechanisms should be established whereby opinions of persons involved in law schools as well as external well-informed persons will be appropriately reported to and reflected in the National Bar Examination Administration Commission.


    5. Continuing Education

    Continuing education should be developed as a part of the comprehensive and systematic concept of legal training.

    In order to train and secure legal professionals with the character and capability (including legal ethics) fit to support the justice system in the 21st century, continuing education should be developed as a part of the comprehensive and systematic concept of legal training.
    In this respect, it seems to be significant for legal professionals currently engaged in legal practice to study subjects in advanced and up-to-date fields, international fields and interdisciplinary fields by appropriate means including taking classes at law schools, so as to update the legal knowledge required for providing the most appropriate legal services and to broaden their views and activity areas. Voluntary and positive efforts of the parties concerned are called for.


    6. For Smooth Implementation of the New Legal Training System

    The governmental departments and other institutions concerned, undertaking appropriate coordination with each other, should further considerations promptly and steadily regarding the necessary measures, such as developing the standards for the chartering of law schools and third party evaluation (accreditation) and designing the concrete plan for the new national bar examination and the apprenticeship training program following the new national bar examination.
    The standards for the chartering of law schools and third party evaluation (accreditation) should be published as early as possible and widely disseminated.

    In order to enable the new legal training system outlined above to be smoothly implemented, the governmental departments and other institutions concerned, undertaking appropriate coordination with each other, should further considerations promptly and steadily regarding the necessary measures, such as developing the standards for the chartering of law schools and third party evaluation (accreditation) and designing concrete plans for the new national bar examination and the apprenticeship training program following the new national bar examination. In doing so, reference must be made to the report that was prepared by the Ministry of Education, Science, Sports and Culture (the current Ministry of Education, Culture, Sports, Science and Technology) in response to our request to discuss the specific plans from a technological viewpoint with the participation of the parties involved in universities and the three branches of the legal profession, taking the basic concepts presented by this Council into consideration ("Summary of the Discussion on the Concept of Law School (working title) ? Basic Issues on the Designing of the Law School (working title) System" of September 2000). In particular, the standards for the chartering of law schools and third party evaluation (accreditation) should be published as early as possible and widely disseminated so that universities, etc., considering whether to establish law schools can make sufficient preparations under fair conditions.



    Part 3. Reform of the Lawyer System

    1. Fulfillment of Lawyers' Social Responsibility (the Public Interest)

    Lawyers should carry out their social responsibility by faithfully pursuing their duties and rendering services to fulfill the public's rights and benefits (for the public interest), as well as by making continuous efforts to improve their professional activities while retaining professional ethics that are suitable for their missions.
    Performing activities for the public interest should be deemed to be one of the lawyers' duties, with the details of such activities being clearly defined. Lawyers should secure the transparency of such details and demonstrate their accountability to the public.

    The social role to be played by lawyers as members of the legal profession who should be the "doctors for the people's social lives" is as the providers of high quality legal services, inside or outside the bar. They are to be the "dependable guardians of rights" and "reliable bearers of the justice system" for the public on the basis of their mission to "protect fundamental human rights and achieve social justice" (Article 1(1) of the Lawyers Law).
    It is thought that lawyers can carry out their social responsibility (for the public interest), fundamentally, through contributing, as "dependable guardians of rights," to the fulfillment of clients' (the public's) legitimate rights and interests while retaining their professional ethics, as "dependable guardians of rights," by various professional activities such as energetically conducting legal procedures under the adversary system. To achieve a more familiar, friendly and dependable existence as partners of the public in societal life or partners of enterprises in business activities, as well as bearers of public offices, lawyers have to make efforts to improve their quality and ability and to assure strong communication with the public. In addition, in order to respond more positively and adequately to broad and varied social needs, lawyers should try to change their own way of thinking and to discipline their own conduct with consciousness of professional ethics that suit their mission to serve for the public interest.
    At the same time, lawyers should be aware of their social responsibility (for the public interest) to serve justice in "the space of the public good" (kokyosei no kukan) as "reliable achievers of justice," beyond just conducting their usual professional activities. There are various specific details and manners to fulfill this responsibility such as, for example, so-called "pro bono activities" (e.g., activities to protect the rights of the socially disadvantaged), assuring the public's access to legal services, taking charge of official duties, and participating in training their successors. Lawyers are expected to contribute to society through these activities.
    Furthermore, in taking charge of official duties, it is desirable for lawyers to more positively engage themselves in such other legal professions as judges and prosecutors so that they can contribute to the administration of a justice system that can respond to public expectations and public trust. In particular, as mentioned in "The Reform of the Judge System" (Part 5 below), considering that it will become more necessary to vigorously promote the appointment of lawyers as judges, the bar associations have to make more efforts than ever to ensure that numbers of qualified member lawyers will be willing to accept those appointments. Bar associations should immediately make every necessary arrangement to promote the appointment of lawyers to judicial positions in cooperation and coordination with the Supreme Court.
    From this point of view, the activities for the public interest should be deemed to be one of the lawyers' duties, with specific details and normative significance of such activities being clearly defined on the basis of consideration of how the overall justice system should be, including the lawyer system and related various systems. Lawyers should secure transparency of such activities and achieve accountability to the public.


    2. Expansion of the Scope of Lawyers' Activities

    Restrictions on lawyers in assuming official posts, as provided in Article 30(1) of the Lawyers Law, and the system requiring lawyers to obtain the permission for business, etc., provided in Article 30(3) of the same law should be liberalized by shifting to a reporting system.
    What is appropriate with regard to professional ethics in connection with the expansion in scope of activities should be studied, and the observance of professional ethics should be secured by improving ethical training, properly applying the official disciplinary system, etc.

    The taking of official posts by lawyers is restricted (Article 30(1) of the Lawyers Law), and lawyers are required to obtain permission from the bar association to which they belong in order to join private companies (Article 30(3) of the same law).
    In the future, lawyers are expected to respond actively to social needs, to go out and exert diverse functions in every corner of society such as with public bodies, international institutions, non-profit organizations (NPO), private companies and labor unions, and to contribute to the sound operation of such entities under the philosophy of the rule of law, not limited to the activities as the legal representatives of or counsels for individuals and corporations.
    From such a viewpoint of extending the scope of lawyers' activities, with regard to the restriction on lawyers in assuming official posts provided in Article 30(1) of the Lawyers Law and the system requiring lawyers to obtain permission for business, etc., provided in Article 30(3) of the same law, the prior controls should be abolished and the systems should be liberalized. (Together with these steps, studies should also be made on a revision of Article 30(2) of that law.) In that process, consideration should be given to what the appropriate professional ethical standards should be for lawyers having additional jobs, and a system for reporting to the bar association to which the lawyer belongs should be maintained so as to enable grasping the situation of additional jobs after the fact. Thereupon, the observance of professional ethics should be secured by improving ethical training, properly operating the official disciplinary system, etc.


    3. Expansion of Access to Lawyers

    (1) Development of Legal Consultation Services

    The establishment of legal consultation centers should be promoted.

    Currently, the Japan Federation of Bar Association and individual bar associations are promoting the establishment of "legal consultation centers" or "publicly-run firms" to improve legal services in local areas such as legal consultation. In addition, many local public bodies use lawyers to give advice, including legal advice, at the consultation windows they provide for residents.
    In order to expand the public's access to lawyers, the number of lawyers should be substantially increased and, in addition, the establishment of "legal consultation centers" run by bar associations and the like should be promoted, with one reason being to cope with the shortage of lawyers in local areas. In this respect, lawyers and bar associations are expected to undertake even more efforts on their own, and, from the standpoint of expanding justice services to the regions, consideration should be given to how best to manage such systems, including having the central government or local public bodies bear a certain level of financial burden.

    (2) Securing Transparent and Reasonable Lawyers' Fees

    From the viewpoint of securing transparent and reasonable lawyers' fees, for example:
    Disclosure and furnishing of information on fees of individual lawyers should be strengthened.
    A duty to prepare contract documents on lawyers' fees should be established, and the duty to provide explanations on fees to clients should be made fully realized.

    From the standpoint of making it easier for the users to make estimates, lawyers' fees should be transparent and reasonable. Specifically, the disclosure and furnishing of information on fees of individual lawyers should be strengthened; a duty to prepare contract documents on lawyers' fees should be established; and the duty to provide explanations on fees to clients should be made fully realized.
    In Article 33 of the Lawyers Law, "rules indicating the standards for lawyers' fee" are stipulated as an item that must be set forth in bar association bylaws. In the Three-Year Plan for Promoting Regulatory Reform (Cabinet decision of March 30, 2001), however, it is provided that "the rule on fees shall be deleted from the items to be set forth in association bylaws." Therefore, appropriate measures should be taken pursuant to this decision. In the event bar associations develop any provisions on lawyers' fees, the process of developing such provisions should be made transparent.

    (3) Public Disclosure of Information on Lawyers

    With respect to the liberalization in principle of lawyer advertising, consideration should be given and necessary steps taken toward permitting advertising of lawyers' fields of expertise, past performance and the like.
    Disclosure of information on lawyers should be further promoted.

    In October 2000, lawyer advertising was liberalized in principle. In order to make it more convenient for clients to select lawyers, the possibility of introducing a third party evaluation system should be considered and necessary steps should be taken toward permitting advertising of lawyers' fields of expertise, past performance and the like. In addition, disclosure of information on lawyers should be further promoted.


    4. Strengthening Lawyers' Business Structure and Strengthening Expertise

    Necessary measures should be taken to promote the incorporation of law firms and use of joint law firms, to strengthen lawyers' expertise and to promote cooperation and the establishment of comprehensive firms.
    For improving lawyers' expertise, the continuing education of lawyers should be improved and more effectively carried out, including making it a duty to take training courses as provided by bar associations.

    Lawyers should make the utmost effort to constantly improve their professional activities so that they can meet social demands that are becoming more complex, diversified and international.
    With respect to the systems on lawyers' business structure, legislative measures have just been taken under the revision of the Lawyers Law passed at the 151st session of the Diet in 2001, such as introducing the system for granting corporate status to lawyers (Article 30(2) of the Lawyers Law et seq.) and allowing to such lawyer corporations an exception to the provision prohibiting having more than one office (Article 20(3) of the Lawyers Law).
    In order to strengthen lawyers' business structure and further improve the quality of their services, necessary measures should be taken to effectively promote the incorporation of law firms or the use of joint law firms, to improve lawyers' expertise and to promote cooperation with other types of businesses and the establishment of comprehensive firms (for providing one-stop services). In that connection, further consideration should be given to whether or not to permit so-called mixed service joint enterprises, including business structures involving sharing of revenue or mutual employment.
    Furthermore, for improving lawyers' expertise, the continuing education of lawyers should be improved and more effectively carried out, including making it a duty to take training courses as provided by bar associations.


    5. Internationalization of Lawyers; Cooperation and Coordination with Foreign Law Solicitors

    So that lawyers may sufficiently meet the demands for legal services in the age of internationalization, the ability to respond to internationalization should be greatly strengthened through such steps as improving lawyers' expertise, strengthening their business structure, promoting international exchange, and paying heed to the demands for internationalization at the legal training stage.
    To promote cooperation and coordination between Japanese lawyers and foreign law solicitors (gaikokuho jimu bengoshi), requirements for specified joint enterprises should be relaxed.
    Legal technical assistance to developing countries should be promoted.
    (Note) See Part 3-4 of Chapter II, "Justice System Responding to Public Expectations," above.)



    6. How Bar Associations Should Be

    (1) Ensuring Transparent Administration of Bar Associations

    The transparent administration of the bar association should be ensured by measures such as the following:
  • Developing mechanisms by which the people's views can be broadly heard and reflected, such as by expanding the participation of parties other than lawyers in the administration of associations, and
  • Developing mechanisms for securing the transparency of the decision-making process and for disclosing business and financial information.
    Bar associations are expected to make necessary arrangements for smoothly effectuating the various reforms set forth in these Recommendations, including the reform of the lawyer system, and for securing the proper operation and development of these reforms.

    • Bar associations carry out various activities "for the purpose of dealing with affairs concerning the training of, communication to and supervision of lawyers, in view of lawyers' missions and duties, in order for them to maintain dignity and to improve and develop services provided by lawyers" (Article 31 of the Lawyers Law).
    Considering the public interest nature of these bar association activities, it is important to secure the transparency of the administration of bar associations and to achieve accountability to the public. Specifically, it is necessary to develop mechanisms by which the people's views can be broadly heard and reflected, such as by expanding the participation of parties other than lawyers in the administration of associations. It is also necessary to develop mechanisms for securing the transparency of the decision-making process and for disclosing business and financial information.
    Furthermore, in order to smoothly achieve the effective fulfillment of lawyers' social responsibility (for the public interest), expansion of the scope of lawyers' activities, extension of access to lawyers, improvement of the quality of their legal services (especially legal procedures to ensure fair and prompt trials), reinforcement of their internationalization and expertise, strengthening of their business structures, and other reforms set forth in these Recommendations, and to ensure the proper operation and development of these reforms, it is strongly incumbent not only for individual lawyers to drastically improve their own awareness and ability, but also for bar associations to respond to such reforms and tasks responsibly in a professional and systematic manner to help and encourage lawyers in carrying out such improvements. Bar associations are expected to make necessary arrangements for smoothly effectuating the various reforms set forth in these Recommendations, including the reform of the lawyer system, and for securing the proper operation and development of these reforms.

    (2) Reinforcement of Bar Associations' Systems on Lawyers' Professional Ethics

    To firmly establish and improve lawyers' professional ethics while responding to the changing social demands, bar associations should strictly exercise their self-regulating functions as well as make further efforts to develop proper lawyer ethics.
    In consideration of ensuring transparent, prompt and effective enforcement of the disciplinary procedures, at least the following measures should be taken:
  • Readjust the composition of the membership (e.g., by increasing the number of non-lawyer members) of organizations that, through the disciplinary procedures, carry out these tasks,
  • Grant the voting right to members of the investigation and prosecution committees other than lawyers,
  • Introduce a system whereby a person who requests a disciplinary action and makes an objection to the decision by the investigation and prosecution committee can submit a further appeal to an organization in which the public participates in the event the previous objection is dismissed or rejected,
  • Effectuate official investigations by bar association committees (shokken chosa) by clarifying lawyers' obligation to cooperate in inquiries or examinations,
  • Ensure prompt proceedings by, e.g., fixing a standard period for review,
  • Improve transparency by clearly indicating minority views along with the decisions of the disciplinary committee,
  • Make further arrangements to expand the participation of persons who request disciplinary actions in the proceedings and to reinforce the provision of relevant information,
  • Improve publication of the process and results of disciplinary actions.
    For protecting the interests of clients and others, fair handling of complaints by bar associations should be achieved by the following means:
  • Developing complaint consultation services and making them known to the public,
  • Educating and training persons in charge of such complaint consultation services,
  • Ensuring fair and transparent procedures to handle complaints,
  • Strengthening relationships with the disciplinary procedures. In addition, other measures should be considered, such as the promotion of lawyer liability insurance, in order to strengthen remedies for legal malpractice.
    Ethical training should be strengthened at the legal training stage and at the continuing education stage.

    • Securing and improving the quality of services provided by lawyers who serve as the contact point between the public and the justice system are necessary for increasing the people's confidence not only in the quality of lawyers' services but also in the justice system (legal profession) as a whole. With such measures, the public will be able to enjoy more effective legal services.
    Bar associations are granted self-regulating authority (so-called lawyers' autonomy) with respect to instruction and supervision related to the quality of lawyers' services, such as the establishment of lawyers' professional ethics, education on those ethics, handling of complaints against lawyers, and disciplinary procedures; and the bar associations are not subject to supervision by governmental authorities. Effectively and strictly exercising such self-regulating authority of bar associations in order to make the lawyers' autonomy more effective should be regarded as the bar associations' responsibility to the public.
    In exercising their self-regulating authority, bar associations should take measures to properly reflect the public's views by ensuring transparent procedures, achieving accountability to the public and enabling the public to participate in the administration and operation of the systems.
    In this respect, to firmly establish and improve lawyers' professional ethics while responding to changing social demands on lawyers, bar associations should strictly exercise their self-regulating authority as well as make further efforts to develop proper lawyer ethics. Furthermore, in consideration of securing the transparency, promptness and effectiveness of enforcement of the disciplinary procedures, ensuring fair handling of complaints by bar associations, and strengthening ethical education and training, the following reforms should be carried out.
    In consideration of ensuring the transparent, prompt and effective enforcement of the disciplinary procedures, at least the following measures should be taken: readjust the composition of the membership (e.g., by increasing the number of non-lawyer members) of organizations that, through the disciplinary procedures, carry out these tasks; grant the voting right to members of the investigation and prosecution committees other than lawyers; introduce a system whereby a person who requests a disciplinary action and makes an objection to the decision by the investigation and prosecution committee can submit a further appeal to an organization in which the public participates in the event the previous objection is dismissed or rejected; effectuate official investigations by bar association disciplinary bodies (shokken chosa) by clarifying lawyers' obligation to cooperate in inquiries or examinations; ensure prompt proceedings by, e.g., fixing a standard period for examination; improve transparency by clearly indicating minority views along with the decisions of the disciplinary committee; make further arrangements to expand the participation of persons who request disciplinary actions in the proceedings and to reinforce the provision of relevant information; and improve publication of the process and results of disciplinary actions.
    For protecting the interests of clients and others, fair handling of complaints by bar associations should be achieved by the following means: developing complaint consultation services and making them known to the public; educating and training persons in charge of such complaint consultation services; ensuring fair and transparent procedures to handle complaints; and strengthening relationships with the disciplinary procedures. In addition, other measures should be considered, such as the promotion of lawyer liability insurance, in order to strengthen remedies for legal malpractice.
    Ethical training should be strengthened at the legal training stage and at the continuing education stage.
    Bar associations should make necessary contributions throughout the entire process of legal training to secure and improve the quality of lawyers' services.


    7. Utilization of Specialists in Fields Adjoining Law

    For utilizing, in legal proceedings, the expertise of specialists in fields adjoining law (so-called quasi-legal professionals):
  • Judicial scriveners (shiho shoshi) should be granted the authority to serve as representatives for litigation in the summary courts, after highly reliable measures to secure their ability have been taken. In addition, equivalent representative authority should be granted for mediation and pre-litigation settlement (sokketsu wakai) matters, using the subject matter jurisdiction limits of summary courts as the appropriate standard for matters judicial scriveners are permitted to handle.
  • Patent attorneys (benrishi) should be granted the authority to serve as representatives in patent infringement lawsuits (limited to cases in which a lawyer is a representative for the litigation), after highly reliable measures to secure their ability have been taken;
  • In tax suits, tax attorneys (zeirishi) should be granted the authority to appear and give statements in the court, as assistants (hosanin), together with a lawyer serving as representative for the litigation, without any special permission from the court;
  • With respect to administrative scriveners (gyosei shoshi), consultants on social insurance and labor (shakaihokenromushi), real estate and building appraisers and other specialists, if it becomes clear in the future that their expertise is necessary in lawsuits and that their performance is suitable, consideration should be given individually with regard to how each of them should be able to participate in a certain scope or form of legal proceedings, such as appearing and making statements in the court, as a matter for the future.
    Expertise of quasi-legal professionals should be utilized for legal affairs, including ADR, outside the scope of litigation proceedings. As a part of the review of Article 72 of the Lawyers Law, individual consideration should be given, based on the actual conditions of each occupation, to what the appropriate manner of participation should be, and this should be clearly prescribed by law.
    In order to, at least, secure predictability regarding the scope and nature of what is regulated under Article 72 of the Lawyers Law, the contents of that regulation should be made clear in an appropriate way, including the relationship to the business operations of quasi-legal professionals and persons engaged in corporate legal affairs from the standpoint of changes to meet diversification of business forms.
    To achieve one-stop services (comprehensive legal and economic firms), measures should be taken to actively promote cooperation between lawyers and quasi-legal professionals.

    • Article 72 of the Lawyers Law prohibits a person who is not qualified as a lawyer from dealing with legal affairs concerning legal cases for the purpose of obtaining compensation. However, so-called specialists in fields adjoining law, or quasi-legal professionals, such as legal scriveners (shiho shoshi), patent attorneys (benrishi), tax attorneys (zeirishi), administrative scriveners (gyosei shoshi), consultants on social insurance and labor (shakaihokenromushi), and real estate and building appraisers are dealing with limited legal affairs under the provisions of the respective business law for each such business.
    With respect to the relationship between lawyers and quasi-legal professionals, it is necessary to comprehensively reconsider who should carry out legal services in the future when the amount of lawyers will significantly increase and various reforms concerning lawyers become a reality, in view of the purpose and significance of the scheme for each kind of specialist and the convenience of and demands for protection of the rights of users. However, in light of the necessity to immediately remedy the present situation whereby rights of the public are not sufficiently protected, measures must be taken to meet the existing demands for legal services from the public's point of view.
    From this standpoint, to utilize the expertise of quasi-legal professionals in legal proceedings, at the least, after highly reliable measures to secure their ability have been taken, judicial scriveners should be granted the authority to serve as representatives for litigation in the summary courts (equivalent representative authority should be granted for mediation and pre-litigation settlement matters, using the subject matter jurisdiction limits of summary courts as the appropriate standard for matters judicial scriveners are permitted to handle), and patent attorneys should be granted the authority to serve as representatives in patent infringement lawsuits (limited to cases in which a lawyer serves as representative for the litigation). In tax suits, tax attorneys should be granted the authority to appear and give statements in the court, as assistants, together with a lawyer serving as the representative for the litigation, without any special permission from the court. (With regard to this point, legislative measures have just been taken, through the enactment of the revised Tax Attorney Law in the 151st Diet [2001].)
    With respect to administrative scriveners, consultants on social insurance and labor, real estate and building appraisers and other specialists, if it becomes clear in the future that their expertise is necessary in lawsuits and that their performance is suitable, consideration should be given individually with regard to how each of them should be able to participate in a certain scope or form of legal proceedings, such as appearing and making statements in the court, as a matter for the future.
    In addition, expertise of quasi-legal professionals law should be utilized for legal affairs, including ADR, outside the scope of litigation proceedings. With regard to what the concrete appropriate manner of participation should be, that should be determined, based on the actual conditions of each occupation, as a part of the review of Article 72 of the Lawyers Law discussed below. In that process, in light of the characteristics and actual situations of the relevant legal matters, the operations, expertise and actual situations of each such category of specialist, the relationship between the legal matters and the duties of each such category of specialist, and the necessity to utilize the expertise in the legal matters, individual consideration should be given to what the appropriate manner of participation should be, and this should be clearly prescribed by law. In order to, at least, secure predictability regarding the scope and nature of what is regulated under Article 72 of the Lawyers Law, the contents of that regulation should be made clear in an appropriate way, including the relationship to the business operations of quasi-legal professionals and persons engaged in corporate legal affairs from the standpoint of changes to meet diversification of business forms
    With respect to cooperation between lawyers and quasi-legal professionals and others with qualifications as specialists, measures should be taken to actively promote implementation of one-stop services (comprehensive legal and economic firms) and to increase their effectiveness in order to improve convenience for the users. In that connection, further consideration should be given to whether or not to permit so-called mixed service joint enterprises, including business structures involving sharing of revenue or mutual employment.


    8. The Status of Persons Engaged in Corporate Legal Affairs, etc.

    The status of persons engaged in corporate legal affairs, etc., should be studied and, at least, systems should be arranged, including the specific conditions therefor, for granting qualification as legal professional to those who have acquired a certain level of actual business experience in the private sector after passing the national bar examination.
    Consideration should be given to utilizing the expertise of those specially promoted as prosecutors (tokunin kenji), assistant prosecutors and those who have been judges at summary courts, and, at least, arrangements should be made for a system for granting qualification as legal professional to those specially promoted as prosecutors.

    In association with the review of utilization of the expertise of specialists in fields adjoining law (quasi-legal professionals), further consideration should be given to the status of persons engaged in corporate legal affairs (kigyo homu), the utilization of the expertise of those specially promoted as prosecutors (prosecutors appointed based on Article 18(3) of the Public Prosecutors Office Law), assistant prosecutors and those who have been judges at summary courts, and the system of designated representatives (shitei dairinin) in administrative lawsuits. At least, arrangements should be made for systems, including the specific conditions for granting qualification as legal professional to those who have acquired a certain level of actual business experience in the private sector after passing the national bar examination, and arrangements should be made for a system for granting qualification as legal professional to those specially promoted as prosecutors.



    Part 4. Reform of the Public Prosecutor System

    1. Elevation of the Quality and Ability Demanded of Public Prosecutors

    From the standpoint of securing people's confidence in the strictness and impartiality of the activities of the public prosecutors, the following measures should be carried out for the reformation of the attitudes of the public prosecutors:
  • Thoroughgoing reconsideration of the personnel and education system, including having public prosecutors work for a certain period of time in places in which they will learn the attitudes and feelings of the general public.
  • Concrete measures for the purpose of deepening public prosecutors', including high-ranking public prosecutors', understanding of the feelings of the victims of crime and the activities of primary investigative organs such as the police.
  • Reinforcing and strengthening internal training in order to prevent public prosecutors from becoming complacent and to build the consistent stance which is fundamentally required for public prosecutors.
    An appropriate training system should be introduced for the acquisition and improvement of specialized knowledge and experience.
    An appropriate training system should be introduced to elevate ability to establish proof, etc., so as to bear the effective operation of the new system for popular participation in criminal proceedings.

    • The roles of the public prosecutor, as the representative of the public, are to exercise the authority for criminal investigation (including to direct and supervise the primary investigative organs such as the police so as to secure the proper handling of cases), to institute prosecution (the public prosecutor is the sole authority that may institute prosecution, and even when there is sufficient suspicion of a crime to institute and pursue prosecution, the public prosecutor, based upon a comprehensive judgment as to the possibility of rehabilitation of the offender and other factors, may decide not to institute prosecution), to pursue prosecution, and to supervise the execution of the judgment of criminal courts; and the public prosecutor plays an extremely significant role especially in criminal cases. In order to secure people's confidence in the appropriate realization of penal authority and people's confidence in the criminal justice system, the public prosecutor must at all times exercise these authorities strictly and fairly.
    Judging from the importance of these duties of the public prosecutor, and from the fact that the mission of the criminal justice system is to find the truth of the case, under the guarantee of due process, the public prosecutor must modestly accept the weight of such authority and responsibility without falling into self-complacency, must possess abundant humanity rich in appreciation for human rights, must of course have common sense for society, must have deep understanding and discernment of the delicate nature and feelings of human relationships, must fully consider the feelings and positions of the people concerned such as the suspect and the victim, and, based on appropriate cooperation and collaboration with primary investigative organs such as the police, must always keep the attitude to sincerely and actively try to resolve the cases appropriately and fairly.
    In addition, in order to improve their investigative ability required to meet new forms of crimes that arise in connection with the changing social structure, technological innovation and internationalization (for example, crimes related to computer networks, etc.), or crimes that require advanced expertise (for example, complicated economic offenses related to corporate activities, professional negligence resulting in injury and/or death caused by medical malpractice, etc.), the public prosecutor must acquire knowledge and experience related to increasingly complicated and diverse political, economic, and social trends, both inside and outside Japan, and cutting-edge fields.
    Furthermore, since a new system will be introduced for popular participation in criminal proceedings (see Part 1-1 of Chapter IV, "Establishment of the Popular Base for the Justice System," below), it is incumbent on the public prosecutor, as one shouldering significant responsibility for criminal procedures, to actively contribute to the effective implementation of that system through elevating the ability to establish proof and making other efforts relating to operation of the system, so that the people, who are not legal professionals, may gain a better understanding of trials.
    Thus, in order to secure the people's confidence in the strictness and fairness of the activities of the public prosecutors, the following measures should be taken to reform the attitudes of public prosecutors.
  • Thoroughgoing reconsideration of the personnel and education system, including having public prosecutors work for a certain period of time in places (such as law firms) in which they will learn the attitudes and feelings of the general public. (As to the aspects of retirement allowance, benefits, etc., due attention should be paid, in the same manner as discussed in Part 5-1(1), "Reform of the Judge System," below.)
  • Concrete measures for the purpose of deepening public prosecutors', including high-ranking public prosecutors', understanding of the feelings of the victims of crime and the activities of primary investigative organs such as the police.
  • Reinforcing and strengthening internal training in order to prevent public prosecutors from becoming complacent and to build the consistent stance which is fundamentally required for public prosecutors.
    In addition, an appropriate training system should be introduced for the acquisition and improvement of specialized knowledge and experience.
    Furthermore, an appropriate training system should be introduced to elevate ability to establish proof, etc., so as to support the effective implementation of the new system for popular participation in criminal proceedings.


    2. Popular Participation in Management of the Public Prosecutors Offices

    Mechanisms should be introduced so as to enable the voices of the people to be heard and reflected in the management of the public prosecutors offices, including reinforcing and making effective the system for proposals and recommendations from the Inquests of Prosecution to chief public prosecutors regarding the improvement of prosecutorial affairs.

    As to not only each individual public prosecutor, but also the public prosecutors offices themselves, it is necessary that the organizational management be proper and be such that it will achieve the understanding and trust of the people. Therefore, it is important to reflect the good sense of the people in prosecutorial management, and this in turn will lead to the strengthening of the popular base of the justice system.
    Under the existing law, Inquests of Prosecution are allowed to make proposals or recommendations to the chief public prosecutors with regard to the improvement of prosecutorial affairs, but this system is not necessarily functioning well. Mechanisms should be introduced so as to enable the voices of the people to be heard and reflected in the management of the public prosecutors offices, including reinforcing and making effective the system for proposals and recommendations from the Inquests of Prosecution. (For example, a duty to respond to proposals and recommendations could be established by law, and proposals and recommendations along with the responses to them could be made public.)



    Part 5. Reform of the Judge System

    In order to secure on a stable basis high-quality judges who will bear the justice system of 21st century Japanese society, and to have them carry out their duties with independence, measures of the sort described below should be taken.

    1. Diversification of the Sources of Supply

    The Court Law anticipates that judges will be drawn not just from among assistant judges, but from a variety of sources including lawyers and prosecutors, but in actual operation, nearly all assistant judges continue on to become judges and the assistant judges have become the primary source of supply for judges. Moreover, to date, the appointment of lawyers as judges has not made much progress and it has been difficult to find an effective measure to redress the current situation. Considering the current conditions and the previous history of the operation of the system, in order to provide a stable supply of the sort of judges expected by the people, mechanisms should be established to ensure as a system that each individual judge gathers abundant and diversified knowledge and experience as a legal professional; and, in addition, measures should be taken to promote appointment of lawyers to the judiciary and to expand the system for research clerks at the courts.

    In order to secure judges with abundant, diversified knowledge and experience, mechanisms should be established to ensure as a system that, in principle, all assistant judges gather diversified experience as legal professionals in positions other than the judiciary.
    The special assistant judge system should be phased out in stages and on a planned basis. For that purpose, as well as others, the number of judges should be increased and, so as to accomplish this, appointment of lawyers and others as judges should be promoted.
    In order to promote appointment of lawyers and others as judges, the Supreme Court and the Japan Federation of Bar Associations should make unified efforts and should establish continuous and effective measures, by building a constant framework and promoting consultation and collaboration.

    (1) Reform, etc., of the Assistant Judge System

    a. Appointment, etc., of Assistant Judges as Judges
    (a) In order to secure judges with abundant, diversified knowledge and experience, mechanisms should be established to ensure as a system that, in principle, all assistant judges gather diversified experience as legal professionals in positions other than the judiciary. The following points should be borne in mind in preparing the system.
  • The basis of "diversified experience as legal professionals in positions other than the judiciary" should be for assistant judges to once leave their status as judges and gather experience in other legal professions such as lawyer, public prosecutor, etc. In addition, experience of other types that is considered equally beneficial, in elevating the quality of judges, to the types of experiences described above may also be included, but further consideration must be given to the specific contents of such other types of experiences.
  • The period of experience shall be a considerably long period suited to obtaining meaningful experience.
  • The system should systematically ensure that assistant judges gather experience as lawyers, public prosecutors or other legal professionals or equivalent experience. As steps to that end, such steps might be considered as reexamining the criteria for appointment of judges or placing weight on these types of experience in selecting judges. Further studies shall be given to these matters. In any event, effective measures shall be established.
  • It is desirable that due care be given with respect to aspects such as the retirement allowances and other benefits for those assistant judges who once have left their status as judge, gathered other experience of the type discussed above, and then returned to the position of judge.

    (b) From a similar point of view as above, in appointing lawyers and public prosecutors as judges, as a precondition, it will be significant that they have experience within the judiciary, such as, for example, as assistant judges or law clerks, and such experience should be given weight in their nomination.

    b. Termination of the Special Assistant Judge System
    The special assistant judge (tokurei hanji-ho) system (under which those who are specially designated from among the assistant judges having over five years of experience are empowered to exercise the same authority as judges) was originally a "temporary" measure to respond to the shortage of judges. In view of the spirit of the Court Law, which requires over ten years of experience as a legal professional in order to become a judge exercising full authority, the special assistant judge system should be phased out in stages and on a planned basis. The need for a substantial increase in the number of judges has already been addressed. For the purpose of phasing out the special assistant judge system, as well, the number of judges should be increased substantially and, so as to accomplish this, appointment of lawyers and others as judges should be promoted, through measures such as those discussed in (2) below.


    (2) Promotion, etc., of Appointment of Lawyers
    In order to realize the import of Article 42 of the Court Law, which anticipates that judges will be drawn from a variety of sources, and to respond to the substantial increase in the number of judges needed in order to phase out the special assistant judge system and for other reasons, it is necessary to promote strongly the appointment of lawyers as judges, which has long been overdue. For this it is indispensable that the Supreme Court and the Japan Federation of Bar Associations build a constant and close cooperative framework. Furthermore, this cooperative framework should not be limited to the appointment of attorneys as judges but should also serve as a framework for the mutual exchange of personnel, and accordingly has great significance with regard to contributing to the smooth operation of the system, discussed in (1)a(a) above, whereby assistant judges who have experienced practice as lawyers return to the judiciary. Based on the same understanding as that set forth above, the Supreme Court and the Japan Federation of Bar Associations have agreed to cooperate and to promote appointment of lawyers, and have prepared the "Outline of the Establishment of the Consuoltation Meeting for Appointment of Lawyers, etc." (April 12, 2001), among other steps (see "Regarding the Proposal for Concrete Measures to Promote Appointment of Lawyers," May 8, 2001). In this spirit, both the Japan Federation of Bar Associations and the Supreme Court should hereafter make unified efforts and should establish continuous and effective measures to promote appointment of lawyers and others as judges, by building a constant framework and promoting consultation and collaboration. In addition, it goes without saying that, based upon the spirit of diversification of the sources of supply for judges in Article 42 of the Court Law, it is desirable that appointment not be limited to assistant judges and lawyers but include vigorous appointment of public prosecutors and legal scholars, who also are legal professionals.


    (3) Expansion of the Research Clerk System at the Courts
    Under the current research clerk system of the courts, in some District Courts and High Courts, including those in Tokyo and Osaka, research clerks who are not qualified as legal professionals are being utilized for some specialized cases, but at present no District Court nor High Court utilizes any person qualified as a legal professional as a research clerk. In consideration of such current conditions, and from the standpoint of building courts with firm foundations and at the same time providing one mechanism by which those from outside the courts can obtain experience within the judiciary, consideration should be given to measures for expanding the research clerk system, including the possibility of appointing qualified legal professionals and others with learning and experience as a sort of law clerk attached to a judge (or judges), who will assist that judge (or those judges) regarding trial proceedings and judgments for the entire range of cases handled by that judge (or those judges).


    2. Reexamination of Procedures for Appointment of Judges

    In order to reflect the views of the people in the process whereby the Supreme Court nominates those to be appointed as lower court judges, a body should be established in the Supreme Court, which, upon receiving consultations from the Supreme Court, selects appropriate candidates for nomination, and recommends the results of its consideration to the Supreme Court.
    Appropriate mechanisms should be established so that this body can make its selection of appropriate candidates meaningfully, based on sufficient and accurate information, such as, for example, establishing subsidiary bodies in each geographical region.

    Under the current system, the Cabinet appoints judges for the lower courts based on a list of persons nominated by the Supreme Court (Article 80, Section 1 of the Constitution and Article 40, Section1 of the Court Law; the same applies to reappointments). However, the process by which the Supreme Court nominates candidates is not necessarily clear, and the views of the people cannot penetrate that process. The current situation should be reconsidered and, from the standpoint of strengthening the confidence of the people toward the judges, in order to reflect the views of the people in the process whereby the Supreme Court nominates those to be appointed as lower court judges, a body should be established in the Supreme Court, which, upon receiving consultations from the Supreme Court, selects appropriate candidates for designation, and recommends the results of its consideration to the Supreme Court. In preparing that system, the following points should be kept in mind.
  • There are various possible manners for consultations to this body by the Supreme Court, but sufficient care should be taken so as to enable the body to substantially exercise its own judgments concerning the selection of appropriate candidates.
  • In order to sufficiently guarantee access to the selection process of this body by those seeking appointment as judges, mechanisms should be established to assure that the process is transparent, including disclosing the selection standards, procedures, schedule and other matters. In addition, all candidates seeking appointment as judges shall be subject to the selection by this body before a final decision whether or not to nominate the candidate for appointment is made by the Supreme Court.
  • Appropriate mechanisms should be established so that this body can make its selection of appropriate candidates meaningfully, based on sufficient and accurate information, such as, for example, establishing subsidiary bodies in each geographical region. The evaluation of the judges under the system discussed in 3, "Reexamination of Personnel System for Judges (Securing Transparency and Objectivity)" below should also be utilized for the information for the selection by this body.
  • In reflection of the spirit underlying the establishment of this body, in order to make it a fair and authoritative body, due efforts shall be undertaken to secure impartiality and fairness with regard to the composition and selection of members of this body.
  • With regard to the selection of candidates by this body, due care must be taken so that there is no fear of interference with the independence of judges, such as by excluding the contents of individual judgments from the scope of review.
  • In consideration of the import of the Constitution, which allocates the selection of appropriate candidates for the judiciary to the Supreme Court from the standpoint of securing the independence of the judiciary, the opinion of this body regarding the selection results can have no legally binding effect on that Court. However, from the standpoint of accountability, if the Supreme Court does not nominate for appointment a candidate deemed appropriate by the body, the Supreme Court shall, upon request by that candidate, disclose to the candidate the reasons for non-nomination. Furthermore, studies must be made on appropriate measures for achieving accountability to candidates deemed not appropriate as a result of selection by that body.


    3. Reexamination of the Personnel System for Judges (Securing Transparency, Objectivity)

    With regard to the personnel evaluation of judges, appropriate mechanisms should be established for the purpose of securing transparency and objectivity as much as possible, by making clear and transparent who should be the evaluator and the standards for evaluation, by enriching and making clear the materials used in making the evaluation, and by disclosing the contents of the evaluation to the candidate and establishing appropriate complaint procedures in the event the candidate objects.
    Consideration should be given to what the appropriate system is for increases in compensation (raises) for judges, including possible consideration of simplification of the current compensation grades.

    Under the current system, personnel management for judges at the lower courts is conducted pursuant to decisions by the judicial conference of the Supreme Court, as one component of the judicial administration performed by that Court. However, there exists an observation that the personnel evaluation that serves as the basis for the personnel management lacks transparency and objectivity. The current situation should be reconsidered and, from the standpoint of strengthening the people's confidence in the independence of judges, while paying full heed to keeping the independence of judges (including both internal independence and external independence), appropriate mechanisms should be established for the purpose of securing, as much as possible, transparency and objectivity with regard to the personnel evaluation of judges, by making clear and transparent who should be the evaluator and the standards for evaluation, by enriching and making clear the materials used in making the evaluation, and by disclosing the contents of the evaluation to the candidate and establishing appropriate complaint procedures in the event the candidate objects. In preparing those mechanisms, the following points should be kept in mind.
  • Under the assumption that the final evaluation will be made by the judicial conference of the Supreme Court, who should be responsible for the primary evaluation should be made clear.
  • With regard to the standards of evaluation, concrete and objective evaluation items, such as, for example, ability in disposing of cases, legal knowledge, leadership ability, ethics, flexibility, etc., should be clearly established and announced publicly.
  • Consideration should be given to appropriate methods to draw out the views of the individual involved, by means of, for example, having him or her prepare a self-evaluation form, and, in addition, consideration should be given to appropriate methods for paying heed not only to views within the judiciary but also to views from outside the judiciary.
  • The contents of and reasons for the evaluation should be disclosed to the candidate himself or herself upon request.
  • Appropriate complaint procedures should be established in the event the candidate objects to the contents of the evaluation, etc.
    Furthermore, with respect to the system for increases in compensation (raises) for judges, as it has long since been observed, due care should be paid in order that whether or not one receives a promotion, or the speed of promotions, will not influence his or her independence in exercising authority. In addition, given the nature of judges' duties, it is very difficult to classify the degree of complexity, difficulty, and responsibility of each judge's duties. In consideration of these circumstances, studies should be made on what the appropriate system is for increases in compensation (raises) for judges, including possible simplification of the current compensation grades.


    4. Popular Participation in the Management of the Courts

    Measures should be introduced to enable the views of the people to be reflected broadly in the management of the courts, such as reinforcing Family Court councils and newly establishing in the District Courts bodies similar to such councils.

    Reflecting the sound common sense of the people in court management will lead to an elevation in the confidence and understanding of the courts by the people and will in turn lead to the strengthening of the popular base of the justice system. Currently, at each Family Court, a Family Court council (whose members are selected from employees of local public bodies and other persons of knowledge and experience outside the three branches of the legal profession) is established, which is to express its views with respect to the entire range of management of the Family Court. Measures should be introduced to enable the views of the people to be reflected broadly in the management of the courts, such as by reinforcing the Family Court council system and newly establishing in the District Courts bodies similar to the Family Court councils.


    5. With Regard to How Supreme Court Justices Should Be Appointed, etc.

    Paying due respect to the importance of the position of Supreme Court justice, appropriate measures should be considered to secure a transparent and objective process for their appointment.
    Studies should be made on measures to increase the effectiveness of the system for popular review of Supreme Court justices, such as by making efforts to reinforce the disclosure of information related to each individual justice subject to review so as to make it possible for the people to make substantive judgments.

    Under the current system, the Emperor appoints the chief justice of the Supreme Court based upon the nomination by the Cabinet, and the Cabinet appoints the associate justices (Article 6, Section 2 and Article 79, Section 1 of the Constitution, and Article 39, Sections 1 and 2 of the Court Law). However, the processes for nomination by the Cabinet and for appointment are not necessarily transparent, and problems have been pointed out, such as the entrenchment of fixed proportions for the numbers of justices who come from each field. The current situation should be reconsidered and, from the standpoint of strengthening the people's confidence in the justices of the Supreme Court, studies should be made on appropriate mechanisms for the purpose of securing transparency and objectivity with regard to the appointment process, while paying due respect to the importance of the position. (The system of the Justice Appointment Consultation Commission, established in 1947 pursuant to the provisions of the Court Law, is of reference.)
    In addition, it has been observed that the system for popular review of Supreme Court justices has become a dead letter. The current situation should be reexamined and, from the standpoint of strengthening the people's confidence in the justices of the Supreme Court, studies should be made on measures to increase the effectiveness of the system for popular review of Supreme Court justices, such as by making efforts to reinforce the disclosure of information related to each individual justice subject to review so as to make it possible for the people to make meaningful judgments.



    Part 6. Mutual Exchanges Among the Legal Professions

    By promoting the mutual exchange of personnel among the legal professions (judges, public prosecutors, lawyers, and legal scholars), a justice system (legal profession) should be built up that truly is able to meet the expectations and trust of the people.

    At present, in terms of personnel exchange among the legal professions, the great majority consists of so-called judge-prosecutor exchanges, in which judges shift over to become public prosecutors, and then from there are transferred to the Ministry of Justice, where they participate in drafting legislation, litigation affairs and other matters. This situation differs from the spirit of the Court Law, which anticipates diversification of the sources of supply for judges. The number of lawyers and public prosecutors who become judges is very small, and there are virtually no cases of lawyers becoming public prosecutors. Thus, exchange of personnel is extremely limited.
    In reflection of such current conditions, as measures to promote the realization of the spirit of the Court Law to broadly welcome talented persons suitable for becoming judges not just from within the courts but from all fields of the legal profession, in order to secure judges possessing diverse and abundant knowledge and experience, the mutual exchange of personnel among the legal professions should be promoted, first by establishing mechanisms to systematically ensure that assistant judges gather diverse experience as legal professionals in positions outside the judiciary, and by implementing measures to promote the appointment of lawyers, public prosecutors and legal scholars as judges and, in addition, by implementing measures to promote the appointment of lawyers and legal scholars as public prosecutors. Furthermore, related to the above, from the standpoint of improving the relationship between public prosecutors and judges, the current situation in which the transferees to the Ministry of Justice and the public prosecutors offices consist primarily of judges should be reformed, and measures should be established for the purpose of accepting personnel broadly from outside the judiciary as well. Beyond this, through efforts such as these, a justice system (legal profession) should be built up that truly is able to meet the expectations and trust of the people.



    Chapter IV. Establishment of the Popular Base of the Justice System


    In Japanese society of the 21st century, it is incumbent on the people to break out of the excessive dependency on the state that accompanies the traditional consciousness of being governed objects, develop public consciousness within themselves, and become more actively involved in public affairs. In the field of the judiciary which plays an integral part as one branch of the existing governance structure based on popular sovereignty, the people also are expected to participate broadly in the entire range of administration in various ways, while maintaining autonomy and a sense of responsibility. If the people become more widely involved in the administration of justice together with legal professionals, the interface between the justice system and the people will become broader in scale and deeper, public understanding of the justice system will rise, and the justice system and trial process will become easier for the public to understand. As a result, a much firmer popular base of the justice system will be established.
    When the public becomes involved in the justice system, it is incumbent on the legal profession as legal specialists and the participating public to cooperate with mutual trust and with sufficient and appropriate communication. It is necessary to reexamine how the legal profession bearing the justice system should be, and to develop and secure a legal profession that can meet the expectations and the trust of the people. It is also incumbent on the public to make active efforts to establish and maintain sufficient communication with the legal profession and for the people themselves to achieve and to support a justice system for the people.
    After all, for the justice system to achieve its functions fully, it is indispensable that the justice system obtain broad support from the people and that the popular base be established. The establishment of a popular base through increased popular involvement in the justice system thus constitutes one of the three pillars of this reform of the justice system.
    In order to realize sufficient and appropriate communication between the legal profession and the people as described above, which is needed for popular involvement in the justice system, it is necessary to lay the needed groundwork, such as making the justice system more easily understandable to the general public, increasing education about the justice system, and, in addition, raising the transparency of the justice system to the public by promoting disclosure of information about the justice system.



    Part 1. Establishment of the Popular Base of the Justice System (Popular Participation in Justice)

    From 1928 to 1943, a jury system was adopted for a certain portion of criminal cases in Japan (although the jury's verdict did not legally bind the courts). Looking at the existing systems for popular participation in justice, systems such as conciliation members, judicial commissioners, and Inquests of Prosecution exist, and those systems have been performing their functions quite well. Still, on the whole, opportunities for the people to be involved in the administration of justice are very limited, and the authority provided to the people in those instances in which they do participate is also limited. (See Article 3(3) of the Court Law.) In order to establish a much firmer popular base for the justice system by obtaining the autonomous participation of the people in the justice system, it is necessary to establish appropriate participation mechanisms in a variety of settings, such as trial procedures, the process for selection of judges, and the administration of the courts, the public prosecutors offices and bar associations, as well as reforms of the existing systems for popular participation systems, as discussed below.

    1. Introduction of New Participation System in Criminal Proceedings

    A new system should be introduced in criminal proceedings, enabling the broad general public to cooperate with judges by sharing responsibilities, and to participate autonomously and meaningfully in deciding trials.

    Litigation proceedings constitute the core of the justice system; and popular participation in those proceedings has very important significance as a measure to establish the popular base of the justice system.
    That is to say, through having the people participate in the trial process, and through having the sound social common sense of the public reflected more directly in trial decisions, the people's understanding and support of the justice system will deepen and it will be possible for the justice system to achieve a firmer popular base. From this point of view, a new system should be introduced, for the time being in criminal proceedings, enabling the broad general public to cooperate with judges by sharing responsibilities, and to take part autonomously and meaningfully in deciding trials, with points (1) through (4) below showing the basic direction for the system. (The public participants are referred to, provisionally, as saiban-in.)
    In designing the concrete system, it goes without saying that the import of the Constitution (including the provisions on the judiciary in Chapter VI, the right of access to the courts, the right to a speedy and public trial by an impartial tribunal, the guarantee of due process, etc.) should be fully considered and that the new system must comport with the Constitution.
    In addition, in order for the system to achieve its intended functions, the active support and cooperation of the public is indispensable. Accordingly, from the system design stage, it is essential that the public be fully informed and that the public's views be listened to carefully. In the stage of actual implementation as well, the appropriate environment should be prepared so as to achieve smooth introduction of the system, by widely disseminating knowledge about the significance and import of the system, further improving education about the justice system, and in other ways. Even after its implementation, the initial system should not be regarded as fixed in stone. Rather, the actual circumstances of the system should be constantly monitored and, bearing in mind the importance of establishing the popular base, the system should be flexibly readjusted from a broad viewpoint, as necessary. The possibility of introducing the participation system for proceedings other than criminal cases should be considered as a future issue, keeping watch on the circumstances of the introduction and operation of the new participation system in criminal proceedings.

    (1) Basic Structure

    Judges and saiban-in should deliberate and make decisions both on guilt and on the sentence together. In the deliberations, saiban-in should possess generally equivalent authority to that of judges; and in the hearing process, saiban-in should possess appropriate authority including the authority to question witnesses.
    The number of judges and saiban-in on one judicial panel and the method of deciding the verdict should be determined appropriately, giving consideration to the need to ensure the autonomous and meaningful participation of saiban-in and the need to ensure the effectiveness of deliberations, and also taking into account the seriousness of the cases to which this system will apply and the significance and potential burden of the system on the general public.
    However, a minimum requirement should be that a decision adverse to a defendant cannot be made on the basis of a majority of either the judges or the saiban-in alone.

    a. Role-Sharing by Judges and Saiban-in
    The significance of the involvement of saiban-in is that, while judges and saiban-in share responsibilities, the judges who are legal specialists and the saiban-in who are laypersons will share their respective knowledge and experience through mutual communication and reflect the results thereof in their judgments. This significance applies not only to fact finding and decisions on guilt, but in the same way to decisions on sentencing, as to which the public takes a strong interest. Accordingly, as to all of these matters, the saiban-in should participate and sound social common sense should be reflected. In addition, there exists significance in the very process of judges and saiban-in sharing their knowledge and experiences through mutual communication, so judges and saiban-in should deliberate together and make decisions both on guilt and on the sentence. (Further consideration is needed, however, on whether saiban-in should be involved in highly specialized or technical matters such as questions of law or questions of procedure.)
    To ensure the saiban-in participate autonomously and meaningfully in trial decisions while sharing responsibilities with judges, in the deliberations, saiban-in should possess generally equivalent authority to that of judges, and in the hearing process, saiban-in should possess appropriate authority including the authority to question witnesses.

    b. Composition of Judicial Panel and Method of Deciding Verdict
    The number of judges and saiban-in on one judicial panel and the method of deciding the verdict relate to each other and need to be examined together. These matters should be determined appropriately, giving consideration to the need to ensure the autonomous and meaningful participation of saiban-in and the need to ensure the effectiveness of deliberations, and also taking into account the seriousness of the cases to which this system will apply and the significance and potential burden of the system on the general public.
    From the viewpoint of the need to ensure the autonomous and meaningful participation by saiban-in, it is essential to ensure that the opinions of saiban-in could influence the results of verdicts. In this connection, the number of saiban-in is a very important factor, but other matters such as the manner in which trial hearings are conducted and the method of deciding the verdict are also relevant. Accordingly, the autonomous and meaningful participation of saiban-in should be ensured, taking all these factors into account.
    From the viewpoint of ensuring the effectiveness of deliberations, the size of the judicial panel should be such that all of the judges and all of the saiban-in can engage in thorough discussion to reach a conclusion with substantial grounds. The deliberation process and the method of deciding the verdict are also relevant with regard to the appropriate number, so those matters should be considered together.
    However, given the objectives of the system in which judges and saiban-in work together by sharing responsibilities to reach decisions in trials and the need to ensure the autonomous and meaningful participation by saiban-in, a minimum requirement should be that a decision adverse to a defendant (determinations of guilt, etc.) cannot be made on the basis of a majority of either the judges or the saiban-in alone.

    (2) Selection Method and Duties of saiban-in

    With regard to the selection of saiban-in, the selection pool should be made up of persons randomly selected from among eligible voters, and further appropriate mechanisms should be established to ensure a fair trial by an impartial court. saiban-in should be selected for each specific case and should serve for the entire case up through the judgment on it.
    saiban-in candidates who have received a summons from the court should bear the duty to appear.

    a. Selection Method of saiban-in
    In the new participation system, in principle, all members of the public equally should be given the opportunity to participate in the justice system and should bear the responsibility to do so. Accordingly, with respect to the selection of saiban-in, the selection pool should be made up of persons randomly selected from among eligible voters, so that the selection is made fairly from the broad general public. Thereupon, in order to select persons suited to serve on a case as saiban-in, appropriate mechanisms should be established to ensure a fair trial by an impartial court (such as systems for disqualification and rejection and for challenges). To provide the opportunity to as many people as possible and to avoid excessive burden on those selected, new saiban-in should be selected for each specific case and should be released when they have served for the entire case up through the judgment on it.

    b. Duties of saiban-in
    To ensure the effectiveness of selection of saiban-in, potential saiban-in who have received a summons from a court should bear the duty to appear. However, in the event one cannot appear because of an unavoidable reason such as health problems, or in certain other cases such as the case of having been selected as a saiban-in within a certain previous period, the summoned candidates should be excused from the duty to appear.
    It is natural that, as with judges, saiban-in should bear the duty of confidentiality with regard to secrets they come to know during their duties, such as deliberation details, and also that they should be paid a considerable amount as travel expenses and as an allowance for serving. In addition, it is necessary to further consider measures to ensure the integrity of saiban-in services, to preserve the safety of saiban-in, and other matters.

    (3) Applicable Criminal Cases

    Applicable cases should be cases of serious crime to which heavy statutory penalties attach.
    No distinction should be made based on whether the defendant admits or denies the charge.
    Defendants should not be allowed to refuse trial by a judicial panel composed of judges and saiban-in.

    In order to introduce the new participation system smoothly, it is appropriate to start with a certain portion of the criminal cases. The scope of the cases covered should be cases of serious crime to which heavy statutory penalties attach, those being cases in which the general public has a strong interest and that have a strong impact on society. The scope of such "cases of serious crime to which heavy statutory penalties attach" might, for example, be regarded as cases which by law are to be decided by a collegiate panel, or as cases to which either the death penalty or life imprisonment attaches. Thorough further consideration is necessary, taking into account the number of cases and other factors.
    Since this system has significance not only with respect to the determination of guilt, but also through the participation of saiban-in in determining the sentence, no distinction should be made based on whether the defendant admits or denies the charge.
    The new participation system is to be introduced not for the individual defendants, but rather because it has important significance for the general public and as an adjudication system. Accordingly, a defendant, who is one party to the legal proceedings, should not be allowed to refuse a trial by a judicial panel in which saiban-in participate and instead opt for trial by a judges only.
    Room remains for consideration of establishing mechanisms to exclude special cases, such as, for example, organized crime cases or terrorist cases, that could pose dangers to saiban-in or might lead to threatening behavior directed at saiban-in.

    (4) Trial Procedures, Appeals, etc.

    Various efforts should be made in connection with administration of trial procedures and, as necessary, the relevant laws should be modified, so as to ensure autonomous and meaningful participation by saiban-in.
    The contents of judgments should fundamentally be structured in the same way as those for trials by judges only.
    Litigants should be allowed to appeal (koso) on the ground of error in fact finding or the ground of improper sentence.

    a. Trial Procedures
    Even when saiban-in participate in litigation proceedings, the fact that a presiding judge who is a legal professional supervises the proceedings and directs the trial will not change.
    To make it easier for the saiban-in to understand the proceedings, what is most important is that, as much as possible, the trial should be conducted on consecutive days on a continuing basis, and thorough hearings should be conducted that concentrate on the true contested issues. To that end, it is indispensable to establish preparatory procedures so as to make it possible to set up an effective trial plan by organizing the contested issues, presupposing disclosure of evidence within the proper scope, and it is indispensable to reinforce the defense structure so as to enable defense counsel to concentrate on individual criminal cases. To ensure that saiban-in, who are laypersons, can sufficiently form decisions by examining the evidence presented at trial, it is necessary to materialize the principles of orality and directness. These requirements fundamentally apply to all criminal trial proceedings in general (See Part 2-1 of Chapter II, "Justice System Responding to Public Expectations," above), but they are especially important in proceedings in which saiban-in participate, in order to ensure autonomous and meaningful participation by saiban-in. To that end, while also bearing in mind the possibility of an impact on trials by judge(s) only, various efforts should be made in connection with administration of trial procedures and, as necessary, the relevant laws should be modified. .

    b. Judgments

    It is necessary that judgments set forth the substantial reasons, so as to demonstrate the propriety of the conclusions themselves and so as to explain them to the parties and to the general public and obtain their understanding and trust, as well as to enable or facilitate remedies by appeals. Even when saiban-in participate, the contents of judgments should fundamentally be structured in the same way as those for trials by judges only, and judges should prepare the judgments based on the results of the deliberations.

    c. Appeals

    Even when saiban-in participate, the danger exists of a mistaken verdict or a mistaken judgment with regard to the sentence. Accordingly, in the same manner as in the case of judgment by judge(s) only, appeals by the parties should be recognized with respect to the determination on guilt and with respect to the sentence as well. Further studies are necessary with regard to the composition of the court body for the koso appeal, the method of proceedings, etc., taking into consideration the relationship with the composition of the judicial panel in the court of first instance, etc.

    2. Expansion of Participation Systems in Other Fields

    To expand popular participation in the justice system, the following measures should be taken:
    Introduction of an expert commissioner system, and reinforcement of the conciliation member, judicial commissioner and court councilor systems.
    Reinforcement of the Inquest of Prosecution system, and reinforcement of the volunteer probation officer system.
    Establishment of a new body to reflect popular views in the process for nomination of judges.
    Reinforcement of mechanisms so as to better reflect public views with regard to the administration of the courts, the public prosecutors offices, and the bar associations.

    To establish a much firmer popular base of the justice system, it is necessary to arrange mechanisms for appropriate participation in various aspects of the justice system, as discussed earlier. Major points of measures other than the above-described new participation system for criminal proceedings are set forth below. (The details are set forth in the respective relevant sections.)

    (1) Civil Justice System
    While paying due regard to securing the neutrality and fairness of the courts in connection with matters such as the method of appointment and the manner of participation in proceedings, study should be given, according to the nature of the respective expertise involved, to how new systems should be introduced for participation in litigation procedures as expert commissioners, in which non-lawyer experts in each specialized field become involved in all or part of trials and support judges from the standpoint of their own specialized expertise. (See Part 1-2(1) of Chapter II, "Justice System Responding to Public Expectations," above.)
    Measures should be taken, including a review of selection methods, to secure appropriate persons diverse in terms of age, occupation, experience and so forth, as civil and family conciliation members, judicial commissioners, and court councilors. (See Chapter II, Part 1-5(2).)
    Together with the transfer of jurisdiction for family related cases to family courts, the court councilor system should be reinforced. (See Chapter II, Part 1-5(1).)

    (2) Criminal Justice System
    A system should be introduced to accord legally binding effect to certain resolutions by the Inquests of Prosecution. (See Chapter II, Part 2-3.)
    Consideration should be given to measures to secure appropriate persons as volunteer probation officers from a broad spectrum of the general public. (See Chapter II, Part 2-5.)

    (3) Judge System
    In order to reflect the views of the people in the process whereby the Supreme Court nominates those to be appointed as lower court judges, a body should be established in the Supreme Court, which, upon receiving consultations from the Supreme Court, selects appropriate candidates for nomination, and recommends the results of its consideration to the Supreme Court. (See Part 5-2 of Chapter III "How the Legal Profession Supporting the Justice System Should Be," above.)

    (4) Other
    Mechanisms should be arranged so as to better reflect public views with regard to the administration of the courts, the public prosecutors offices, and the bar associations. (See Chapter III, Parts 3-6, 4-2 and 5-4.)


    Part 2. Laying the Groundwork for Establishment of the Popular Base

    1. Realization of a More Easily Understandable Justice System

    The early realization of revisions to basic laws is expected, and it is also desirable that consideration be given to the operation of the justice system to make it more easily understandable from the viewpoint of the general public.

    Some basic Japanese laws, such as parts of the Civil Code and the Commercial Code, still are written in katakana or include arcane terms that are not suited to present-day society, or use remarkably complicated and inconsiderate numbering systems or ways of citing legal provisions, making them hard for laypersons to understand. To realize a justice system that is easy to understand, the contents of the laws (rules) that constitute the basis for judicial determinations must be made more easily understandable by the general public. In particular, the major basic laws should be made as understandable as possible to the general public and to users both within and outside Japan, and should be made easier to refer to, highly predictable, and appropriate to the latest domestic and international socioeconomic conditions, not only as norms for trials but also as norms for conduct. The same is true of the Law of Procedure in Actions relating to Personal Status, which affects family dispute cases of the public.
    At present, work is proceeding, centered on the Ministry of Justice, on preparation of bills to revise various laws, beginning with the so-called basic laws. This adjustment of the basic laws is a task with which the entire country, including the Diet and the bureaucracy, should grapple. This Council, for its part, also expects early revision of the basic laws.
    In addition to making the contents of the laws more easily understandable, it is also necessary to make the justice system and its operations more easily understandable for the general public. In particular, judgments by the courts have been criticized for their difficult language. Efforts have already been undertaken in the courts to make judgments easier to understand, and continuing consideration should be given from the viewpoint of the general public. In addition, it is desirable for care to be exercised so members of the general public who attend trials can understand the give-and-take among the persons involved in the trials.

    2. Reinforcement of Education about the Justice System

    It is desirable to increase opportunities to learn about the justice system in school education, etc. To this end, it is incumbent on those engaged in education and members of the legal profession to play an active role.

    Law and the justice system should, by nature, be supported not only by legal experts but also by the public as a whole. For this reason, from now on, a change in mindset is needed in which, together with the expansion in participation in the justice system, the people become actively involved in various aspects of the justice system and accept the burden of doing so.
    To this end, it is desirable to give the public more opportunities to learn about the mechanisms and operations of the justice system in various settings, beginning with school education. In this process, it is incumbent not just on those engaged in education, but on those involved in the legal profession, to play active roles.

    3. Promotion of Disclosure of Information Related to the Justice System

    Disclosure and furnishing of information by the courts, the public prosecutors offices, and the bar associations should be promoted.

    The Supreme Court, the Ministry of Justice and bar associations (the Japan Federation of Bar Associations and individual bar associations) have hitherto been disseminating various information, by, for example, creating their own Internet home pages. In addition, along with the official commencement of the information disclosure system by government ministries and agencies (including the public prosecutors offices) on April 1 of this year, courts also decided to undertake equivalent disclosure of information on documents of judicial administration in their possession, in accordance with newly established internal rules. Furthermore, the Japan Federation of Bar Associations is also considering the expansion of disclosure and furnishing of information related to operations, finances, disciplinary procedures, and fields of specialization and other matters related to lawyers. As mentioned earlier, as preconditions for the expansion of popular participation in various aspects of the justice system, it is indispensable to improve the transparency of the justice system for the public and to clarify the duty for accountability. To this end, the courts, the public prosecutors offices and the bar associations should continue to promote the disclosure and furnishing of information.


    While paying due heed to privacy of the persons involved and other concerns, information on judicial decisions should be disclosed entirely and furnished by making use of Internet home pages and other means.

    Hitherto, the courts have compiled and published case reporters for the Supreme Court and High Courts, containing information on decisions with precedential value, and also have been compiling and publishing case reporters for certain specialized fields such as intellectual property rights. In addition, through private law journals and databases, information on decisions also has been provided. Also, under the Code of Civil Procedure, anyone may peruse decisions in individual cases, and parties with interests in the matter may also make copies of the decisions.
    To enable prompter and easier access to information on cases, in 1997 the Supreme Court established its own Internet home page, and at present that Court promptly discloses: 1) the full text of recent major Supreme Court decisions, and 2) the full text of decisions in intellectual property rights cases at lower courts, centered on the Tokyo High and District Courts and Osaka High and District Courts. Furthermore, through a database, the Supreme Court has made available, 3) past lower court decisions regarding intellectual property rights cases. Showing the precedents and standards for resolution of disputes by the courts broadly to the public, by furnishing information on decisions, not only increases the transparency of the justice system to the public and clarifies accountability, but also contributes to the prevention and early resolution of disputes.
    As one part of promoting disclosure of information relating to all aspects of the justice system, including information on decisions and information on the status of litigation, courts especially should entirely disclose and furnish information on decisions, except for decisions with little precedential value, by making use of Internet home pages and other means, while paying due heed to privacy of the persons involved and other concerns.



    Chapter V. Promotion of this Reform of the Justice System


    Part 1. Establishing the Framework for Promoting Reform of the Justice System

    Since the reforms proposed in these Recommendations cannot be accomplished easily without concerted effort by the Cabinet, the Cabinet is requested to establish a strong framework for promoting the reforms and to exert unified and concentrated efforts.

    These Recommendations propose extensive reforms that relate to the very foundation of all aspects of the justice system, from the viewpoint of the people who are the users of that system. In that sense, the reforms proposed in these Recommendations are of epoch-making scale and have historical significance for the Japanese justice system. Without the concerted effort of the Cabinet, these reforms cannot be achieved easily. Accordingly, this Council requests the Cabinet to establish a strong framework for promoting the reforms and to exert unified and concentrated efforts to realize the reforms with certainty, and at an early date, so that these reforms do not simply end up as an unrealized dream.


    Part 2. Efforts of the Cabinet and Relevant Administrative Agencies Toward the Realization of Reform of the Justice System

    The Cabinet and relevant administrative agencies are strongly requested to develop measures on reform of the justice system in a comprehensive manner and to make the best possible efforts to implement those measures in a systematic way and at the earliest possible time.
    With regard to the effectuation of measures related to reform of the justice system by the Cabinet and relevant administrative agencies, it will be difficult to realize the reforms fully without the cooperation and contributions of the Supreme Court, the Japan Federation of Bar Associations and other relevant bodies. Accordingly, those bodies are asked to cooperate to the greatest extent possible in implementing the measures related to reform of the justice system by the Cabinet and relevant administrative agencies, and at the same time to make active efforts for the reform and improvement of systems and administration related to their own duties and functions.

    This Council has delineated its image of Japanese society in the 21st century and the role the justice system will play in that society in the manner described earlier, and has set forth the fundamental philosophy and the directions to go in promoting the reforms, in order that the justice system be one that responds to public expectations and truly fulfills its role; and this Council hereby presents these as our Recommendations to the Cabinet.
    This Council strongly requests the Cabinet and relevant administrative agencies (hereinafter referred to as "the Cabinet, etc.") to deeply recognize that this reform of the justice system should be regarded as the "final linchpin" of a series of ongoing reforms in restructuring "the shape of our country," and that this reform has very important significance in divining what shape the Japanese state and society should take in the 21st century, and then to develop measures on reform of the justice system in a comprehensive manner and to exert the utmost efforts to implement such measures systematically and at the earliest possible time.
    Furthermore, with regard to the effectuation of measures related to reform of the justice system by the Cabinet, etc., it goes without saying that it will be difficult to realize the reforms fully without the cooperation and contributions of the Supreme Court which actually carries out the duties relating to the judicial authority, the Japan Federation of Bar Associations, and other relevant bodies. Accordingly, this Council hereby requests those bodies to cooperate to the greatest extent possible in implementing the measures related to reform of the justice system by the Cabinet, etc., and at the same time to make active efforts for the reform and improvement of systems and administration related to their own duties and functions.


    Part 3. Financial Measures

    Since provision of sufficient financial resources is indispensable to realize these reforms of the justice system, beginning with expanding human resources at the courts and the public prosecutors office, this Council requests the government to give special consideration to the financial measures necessary to implement measures related to reform of the justice system.

    It goes without saying that provision of sufficient financial resources is indispensable to realize these reforms of the justice system, beginning with expanding human resources at the courts and the public prosecutors offices. In the process of drawing out views and demands broadly from all fields of business and every layer of society in the course of our investigations and deliberations, this Council heard a considerable number of voices, from all layers of society, demanding the realization of a justice system that is powerful enough and large enough to warrant trust. From this experience, as well, this Council firmly believes that public opinion demanding an increased budget for reform of the justice system has been greatly rising nationwide; and this Council requests the government to give special consideration to the financial measures necessary to implement measures related to reform of the justice system.



    Conclusion


    This Council, through these Recommendations, has assembled the results of its two-year long investigations and deliberations and hereby submits them to the Cabinet. At the same time, this Council also reports these Recommendations to each and every member of the general public, which has been following our investigations and deliberations with high interest and expectations, and which has submitted to this Council many opinions and demands.
    These Recommendations propose extensive reforms that relate to the very foundation of all aspects of the justice system. These reforms constitute sweeping reforms of the existing system that originated based on the Constitution that was established in 1947, for the first time in a half century, and from the viewpoint of the general public as the users of the system. One reason why such a huge reform must be carried out all at once is that it is clear there have been problems in past efforts to reform and improve of the justice system. All three branches of the legal profession should seriously reflect on the fact that the reforms of the Japanese justice system that have been carried out heretofore, mainly by the three branches of the legal profession, can hardly be said to have responded flexibly to changes in the society and economy. While paying due heed to the independence of the judiciary, the reforms and improvements of the justice system this time must be carried out in a manner that is visible to and easily understood by the general public, with the major objectives of making clear the locus of responsibility, responding properly to social and economic conditions and to the needs of the people, and securing and strengthening accountability and transparency, without being imprisoned by past history.
    Of course, it is necessary to proceed with reforms and improvements in the system while making reference to the practical and specialized views of the courts, the public prosecutors offices, the bar associations and legal scholars. Yet how the justice system should be (shiho no arikata) is not something that should ever be allowed to be decided in accordance with the wishes only of the three branches of the legal profession, as was the case in the past. Moreover, extra care should be taken so that such a perception never is held again. To that end, it is incumbent on the three branches of the legal profession to sincerely accept external assessments and to respond to them appropriately. Most important of all is to fully draw out the views and consciousness of the actual users of the justice system and to reflect them appropriately in the reforms and improvements of that system. To verify users' views empirically, necessary surveys, etc., should be conducted regularly and continuously, and reforms and improvements in the system should be undertaken to meet the expectations of the people.
    This Council sincerely hopes that these Recommendations provide the opportunity for a new start for the Japanese justice system, that the reforms proposed herein will steadily be put into effect, and that the justice system at the earliest possible time becomes one that is easy to use and that meets the expectations and trust of the people.
    Finally, we would like to conclude these Recommendations by expressing our heartfelt appreciation to each and every member of the general public, which gave strong cooperation and support to the investigations and deliberations that concluded with these Recommendations, and by asking each and every member of the general public, as a task shared in common, to keep a keen and sharp eye on the process of realization of the reforms, to give frank opinions and make demands on the organizations promoting the reforms, centered on the Cabinet, and to ceaselessly continue to offer their strength to the reforms, in order that these reforms, which have great meaning for the future, steadily are achieved and that the reform of the justice system becomes the basis for further progress of Japan to new achievements in the future.