III. The Key of This Justice Reform
1. The Present Condition of Administration of Justice and the Direction of Reform
On the other hand, when we look at the present condition of the Japanese justice system, which has evolved under its own historical/cultural background and has played a specific role, we hear the following criticisms that are pointed out at our justice malfunction: "The administration of justice is not open and it is distant from the people," "Both lawyers and the court of justice give us awkward feelings. They lack warmth," "The system of administration of justice is hard to understand and difficult for the people to utilize it," "When the society/economy rapidly changes, administration of justice cannot fully meet the expectation of the people with regard to speed and expertise," "It has failed to exercise the check-function against administration," etc. Plainly speaking, the Japanese administration of justice (the legal profession) is not accepted as a familiar or reliable existence because of their unknown character to people. The JCR should take these criticisms seriously in considering the pivotal role of administration of justice in the 21st century society.
It has been known since early on that the Japanese justice system has many problems which started under the Constitution of Japan. In 1962, the Special Justice System Examinations established in the Cabinet "to secure proper management of the justice system," by "conducting examination and deliberation of urgently needed fundamental as well as comprehensive measures" regarding "Hosoichigen (a system to appoint judges from those qualified to practice law and who have been engaged in legal profession except judges as a rule)" and "the appointment and wage systems of judges and public prosecutors." In 1964, the Committee explained that "Hosoichigen" is "a desirable system for Japan", but prerequisite conditions are not yet coordinated so that "at the present stage, we must improve the present system, while keeping in mind the merit of "Hosoichigen" and cultivation of its basis", and made important proposals on specific measures.
Since then, efforts have been made to realize the proposals. Especially noteworthy was the movement for institutional reforms, which took place since the end of the 1980s.Based on the efforts and results made, it is the mission of the JSRC to create an overall picture of the reform and a specific process to realize it as an answer to the criticisms and expectation of the people for administration of justice as described above. What do people expect in the administration of justice? Plainly speaking, they are: the more accessible and user-friendly administration of justice and proper/prompt as well as effective justice remedy in response to various needs through an open process; and execution of accurate arrest/punishment of crime through due criminal procedures responding to actual circumstances so that people can live safely. We believe that the key to this justice reform is a drastic expansion/reinforcement of institutional and human bases for the administration of justice responding to the expectation of the people based on the concept of the rule of law in the present environment as described in II.
Based upon such viewpoint, the JSRC established the issues to be deliberated at the council, shown in the attached paper as "Issue Items", within the period of two years set for deliberation. The simplified points/gist are as follows.
2. Reinforcement of Institutional Basis for the Administration of Justice
(1) Realization of a More Accessible and User-friendly Administration of Justice
There are many institutional plans we must contrive in order to make a more accessible and user-friendly administration of justice, but above all, we must expand the access to lawyers who make up the overwhelming majority of the legal profession and connect the people with the administration of justice. Lawyers play an important role as the closest legal profession to the people. For example, when a person primarily consults with a lawyer about legal problems, the lawyer will show the person a guideline to solve them and represent the trial procedures. But, from the users' point of view, people cannot readily consult or utilize lawyers under the present circumstances. Lawyers fail to fully respond to various legal needs in respective spheres of the social economy, either. This is one of the factors inhibiting public access to administration of justice. As the background circumstances, we find a shortage of lawyer population, uneven regional distribution of lawyers, hard to estimate lawyer fees, undeveloped working conditions of lawyers and their expertise, and lack of information due to the regulation on their advertisement. We must study the ideal role of lawyers to be played including specific reform measures for the points at issue. The relationship of lawyers with the quasi-legal professions must be studied in this context as well.
The Constitution of Japan stipulates that "No person shall be denied the right of access to justice" (Article 32).In order to guarantee substantially this right, we must coordinate the legal aid system. At present, we have assessed the step under consideration by the government about the coordination of civil legal aid management system as a critical first step and have recently published the chairman statement to the effect that the early realization of such step has been hoped for (November 24). Further comprehensive/systematic study is required with the viewpoint that the legal aid system is a crucial measure to realize a more accessible and user-friendly justice system. Disputes, which occur in the society, vary in size and kind. Preparation of a system to process various disputes according to the characteristics of cases and circumstances of the parties concerned has significance in making a user-friendly administration of justice. We must study the alternative dispute resolution (hereinafter referred to as "ADR") with such viewpoint as well.
We believe in the general conception that the administration of justice is distant from the people and difficult for them to understand owes much to the lack of information on the activities of lawyers and the court of justice. As for the administrative information, the Administrative Information Disclosure Law was enacted in the last ordinary Diet session. We must promote to disclose and provide information regarding the administration of justice and study a more accessible and user-friendly justice system including the ADR.
(2) The Ideal Way of Civil Justice Responding to Public Expectation
As for Civil trials, the revised Code of Civil Procedure was enacted and an easy access to the court of justice was planned out such as the special procedure for small sum litigation. Various plans were made to reinforce/expedite proceedings as well. Actually, the length of proceedings, for example, have been shortened as a whole, but we still
observe cases taking a long proceeding period among cases in which either many number of parties are concerned or expertise is required. The guarantee of the rights of the people shall be insubstantial unless access to the court of justice is made easy, unless trials are conducted properly/promptly and unless court decisions are correctly executed. Therefore, we must take a step further than reviewing the ideal way of litigation/execution procedures. We must study reinforcement of human/material resources for court systems such as increase of the number of judges and lawyers and reinforcement of their business conditions.
When the society becomes more complicated/specialized and social/economic activities become more international, the number of litigation cases requiring professional knowledge on intellectual property rights, medical malpractice or labour problems are anticipated to increase further. We must study methods to utilize experts on such issues other than legal professionals in order to properly cope with such cases.
The court of justice plays a very important role to carry one of the three powers of the sovereign structure, and through the exercise of justice power, it maintains the governing structure of check and balance, and realizes the guarantee of rights/freedom of the people. Various criticisms and proposals have been made to the execution of
administrative litigation procedures and the execution of the authority to review the constitutionality of the law. We must study measures to reinforce the justice-check function against administration/legislation in the 21st century society, in which administration of justice shall increase its clout.
(3) The Ideal Way of Criminal Justice Responding to Public Expectation
The essential role of criminal justice is 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 the cases, and by properly and promptly realizing the power of punishment, bearing in mind maintenance of public welfare and guarantee of individual fundamental human rights. As Japanese society/economy is drastically changing nowadays, the tendency of crime has increasingly become more complicated, atrocious, organized and international. However criminal justice system cannot bring its ability into full play because the past investigation/trial procedures or methods no longer work to fully tackle with them. Therefore, we must study the future methods of investigation/trial procedures corresponding to the new era and the international trend of human right guarantee so that criminal justice may properly play its essential role as above said.
Most criminal trials are managed promptly, but among the complicated cases of grave public concern, there are some cases of which first hearings 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 proper and prompt trials.
On the other hand, it is pivotal to properly protect the rights of suspects/defendants from the point of securing fairness of criminal justice, and it is particularly important to effectively secure the right to counsel. However, the present law goes no further than admitting an accused who cannot select a defence counsel due to insufficient means, etc., to assign an official defence counsel after the person is prosecuted and becomes a defendant. As for a suspect, efforts have been made to fill the vacuum by the duty-solicitor scheme of bar associations and the voluntary aid project of the Legal Aid Association, but such measures have their own limits. (In relation to this, the condition is similar with the counsel attendant of juvenile cases.) The coordination of the criminal defence system shall be important also from such a point of view as realization of proper/prompt criminal trials as described above. Therefore, we must study the coordination of public defence system and conditions of suspects/defendants in broad spectrum including juvenile cases.
(4) Public Participation in Administration of Justice
As suggested in II, in the 21st century, the people of Japan must grow out of excessive dependency on the national government and the mindset of the governed objects and must bring about public awareness in themselves and build up more active attitudes toward public affairs. It is also anticipated that independence and participation of residents in local affairs shall further increase its importance following decentralization of power. In such conditions where involvement of the people as the sovereign is going to expand in many ways, we must also study the ideal way of participation of the people in the justice field as the sovereign.
At present in Japan, although we have some justice participation systems regarding mediations in courts, summary court proceedings and public prosecutions, participation in trial procedures which is the core of administration of justice is rather limited. We must review the present system in order to make the administration of justice more open and familiar to the public and to adopt plural values and professional knowledge for the people in the administration of justice. We must also argue about the propriety of introduction of jury trials/lay-judge system which are adopted in Europe and the United States of America, by paying attention to their historical/cultural backgrounds and institutional/practical conditions.
3. Reinforcement of Human Basis of Administration of Justice
(1) The Population of Legal Professions and the Legal Education and Training System
It is people who manage a system. No matter how idealistic an institution or function may be planned, it is obvious that it ends up as malfunction if the human basis which actually carries it is not well coordinated. We need a large stock of human resources (legal professionals) equipped with both quality and quantity to entrust management of the institution in order for the reinforced institutional infrastructure described in 2. to come to fruition with successful results.
It has been pointed out since early on that the population of Japanese legal professions is too small. In the opinion proposal paper of the above mentioned 1964 Special Justice System Examination Committee, they demanded "gradual increase of the population of legal professions in order to properly and smoothly manage the administration of justice and to reinforce and improve the people's legal life because the number of the legal professions is considerably small as a whole, while paying heed not to deteriorate their quality standard." This was the year when the number of successful finalists of the National Bar Examination exceeded five hundred for the first time since the end of the World War II, but the number stayed nearly unchanged, remaining around five hundred until 1990. Since 1991, the number was gradually increased and finally reached one thousand this year. However, legal demands are anticipated to further diversify and become more complicated so that we must study measures to realize the proper increase of the population of legal professions in order to cope with it.(For reference, the population of legal professions in the respective countries is: the United States about 940,000; Britain about 83,000; Germany about 110,000; France about 36,000 and Japan about 21,000).
The problem is how to educate and train legal professions with the character and capability (including legal ethics) fit to support administration of justice in the 21st century. This issue must be studied comprehensively/ systematically on the role of colleges (including graduate schools) in legal education, the National Bar Examination system, legal education and training system, and the education after being qualified as legal professions. As they say, "legal education shall establish the basis of the justice system of a nation," colleges (graduate schools) are responsible for educating human resources equipped with the broad view of modern society as well as culture in classics, awareness and the character fit for the profession of "doctors for the people's social life". Thus, we must conduct a drastic study of the ideal way of legal education including establishment of professional law schools.
In a free and fair society structured by autonomous individuals, law must be something every person can utilize without difficulty in all levels as a so-called common property of all people. In order to realize it, we must study reinforcement of comprehensive human bases of not only the legal professions but also the quasi-legal professions as carriers of law.
As described above, the proposal of the Special Justice System Examination Committee positioned "Hosoichigen" as "a desirable system in our country" and proposed that "at the present stage, we must improve the present system and pay consideration to cultivation of the basis and the merit of Hosoichigen." The existence of a large stock of lawyers 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 is the basis to sustain the administration of justice. If so, the issue of "Hosoichigen" is not limited to the appointment of judges but is deeply related to the system of administration of justice system overall including the population of the legal professions, the justice education and training system, and the practice of lawyers.
The court of justice is positioned as the core for the administration of justice, and the appointment of judges who play the most essential role in administration of justice regulates the characteristics of administration of justice of a nation, along with lawyers who make up an overwhelming majority of the legal professions and are the foundation of the justice system. Based on the gist of proposals made by the Special Justice System Examinations Committee and efforts made since then, we must study broadly with the "people's viewpoint" what are the character/capability required of judges in a vital society; how shall we secure required human resources; and how shall we guarantee the independence of judges, etc.
(3) Personnel Reinforcement of the Court of Justice/Public Prosecutors' Office
In order to make a more accessible and user-friendly administration of justice, it is indispensable to reinforce the personnel system of the court of justice/public prosecutors' office which carries the systematic justice management including increase of the number of supporting staff.
4. Other points
In addition to the increase of legal disputes in the international scale due to globalization of social/economic activities, it is also a demand from the international community to make the Japanese society more rule-oriented, transparent and open. Therefore, we must discuss the justice reform with a global viewpoint. As we previously suggested, Japan must not limit itself to passive acceptance of international rules and harmonization of justice systems but must actively participate in making/developing international rules. We must also study measures such as the coordination of international arbitration scheme to smoothly solve international disputes.
Furthermore, it is pointed out that the budget of Japanese administration of justice is too small compared to other major countries. We must also study measures for securing the budget required to coordinate human/material bases of the justice system, which shall be made as a result of the reforms described above.
Mainly the three parties constituting administration of justice (judges, public prosecutors, and lawyers) have conducted the previous Japanese justice reforms, but they could not flexibly cope with changes of the society/economy, etc. We must establish a standing organization comprised of law professionals and people of academic standing in other fields than law in order to promptly and properly carry out the justice reform and the improvement of justice management responding to changes of the society/economy and public needs.
IV. For the Future Deliberation
The JSRC have arranged items to be deliberated as shown in "Issue Items" in the attached paper (however, this is the arrangement made up to the present so that in case a new issue arises during deliberation, we shall not by any means exclude it from taking up for consideration.)
We have tentatively divided the "Issue Items" into an institutional basis and a human basis, but as it is made clear by the description made above, problems of institution and problems of human resources mutually and organically relate to one another so that it is not necessarily important to identify to which basis each issue belongs to. Thus, such division itself is nothing but a tentative yardstick; it does neither mean to examine and deliberate each issue separately nor to set the sequence of examinations and deliberations.
The JSRC shall conduct examinations and deliberations, with careful consideration of the mutual relationship of each issue and with the ideal image of the law, until it concludes its final opinion by July 2001, which is the time limit set for by the Act. An interim report shall be published at some point in the Year 2000 to ask opinions from the general public.
Upon conducting specific examination and deliberation, we shall conduct local public hearings and hear opinions of the people of every level on justice reform. We shall also study justice systems of foreign countries for reference by paying attention to those historical/cultural backgrounds and actual functions in order to make multilateral analysis of problems of the present Japanese justice system. After going through such process, we shall make an ideal image of the administration of justice in the 21st century suitable for "Our Country and Its Shape" image, and present an effective reform plan, based on the merits created by the past administration of justice and bearing in mind constantly the historical significance of this justice reform. Furthermore, in the final opinion, we shall thoroughly discuss a specific schedule for the realization of the reform and the sure measure for its implementation.
We deeply think about the significance of the rule of law and the independence of justice power. We shall attend deliberation with indomitable spirit for the realization of a justice system which duly and properly responds to the demand of the coming era, and hereupon publish the arranged points in issue.
1. Institutional Basis
(1) Realization of a more accessible and user-friendly administration of justice Lawyers
Access expansion to lawyers
Measures to cope with a shortage of the lawyer population
Relationship of lawyers and the quasi-legal professions, etc.
Expansion of the legal aid system
Alternative Dispute Resolution besides court proceedings
Open/offering of information on administration of justice
(2) Civil justice responding to public expectation
Expansion of access to the court of justice
Reinforcement and speed up of civil trials
Measures to cope with the cases which require professional knowledge
Civil execution system
Reinforcement of the administration check function by the administration of justice
(3) Criminal justice responding to public expectation
Investigation/trial procedures corresponding to the new era
Reinforcement and speed up of criminal trials
Public defence counsel of suspects/defendants
(4) Public participation in administration of justice
Jury system/magistrate system
Existing system of public participation in the administration of justice
2. Human Basis
(1) Judiciary population and the justice training system
Proper increase of judiciary population
The justice training system
The National Bar Examination/ justice training system
The role of legal education in college
(3) Reinforcement of personnel system of the court of justice/prosecutors office
Preparation for internationalization of the administration of justice
Securing a justice budget