Table of Contents
- Three Principles in 1947 Japanese Constitution
- Legal System
- Court System
- Legislation—Bills, House and Committee Minutes
- Governmental Information
- Statutory Research
- Case Law Research
- a) Official Case Reports on the Web
- b) Unofficial Case Reports in Print and Electronic Format
- Citation Form/Romanization/Japanese Era Names
- Law Journals/ Law Reviews
- Legal Blogs
- Legal Publishers
- Legal Research Guides
- a) Legal Research Guides Outside of Japan
- b) Legal Research Guides in Japan
- c) Legal Research Guide in Print
III. Japanese Law by Topics
- Civil Law
- Criminal Law
- Product Liability and Consumer Protection
- a) Consumer Protection Law
- b) Consumer Policy
- Labor Law
- a) Employment Contracts and Collective Bargaining
- b) Gender Discrimination
- Alternative Dispute Resolution (ADR)
A written history on Japan appears in the Chinese Book of Han, Kansho , 漢書 . A Chinese historical text, the Record of the Three Kingdoms , Sangokushi, 三国志 describes that the most powerful kingdom during the 3rd century was called Yama-taikoku. Although a unified regime was gradually established and Japan evolved into a cohesive society by the 8th century, the law was not codified. Japan adopted the Chinese legal codes called Ritsuryō in the 7th century, which is the first reception of foreign law. The second transplant in codifying the law was in the 19th century during the Meiji Restoration. As imperial rule was restored, following the feudal regime, the Meiji Government enacted various codes following Prussian and French models and the Constitution of Imperial Japan was enacted in 1889. The third transplant was after World War II. The democratization was deployed in Japan by U. S. Allied Occupation, and the new Japanese Constitution was enacted in 1946.
For more thorough historical back ground, refer to the history section of the AsianL II Japan.
The 1947 constitution consists of thirty-one articles, and three principles of the 1947 constitutions are 1) the sovereignty vested in the Japanese people (Article 1), 2) fundamental human rights (Article 11), and 3) Pacifism (Article 9). The 1947 Japanese Constitution also grants a legal anchoring for women’s rights in Article 14, which institutes legal equality of opportunity for men and women in relations between citizens and the State. “All of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin.” Also, the 1947 constitution structures the separation of powers for the governmental system: Legislative (Diet), Executive (Cabinet), and Judicial power (Courts).
The Japanese legal system is based on the civil law system, following the model of European legal systems, especially those of Germany and France. Japan established its legal system when imperial rule to Japan was restored in 1868—the Meiji Restoration. The Meiji Constitution was the organic law of the Japanese empire in effect from 1890 to 1945. After Japan’s defeat in World War II, there was a major legal reform, and the constitution was drawn up under the Allied Occupation, with U S influence. The current Japanese legal system is a hybrid of continental and American law.
Judicial power is vested in the Supreme Court and lower courts (High Courts, District Courts, Family Courts and Summary Courts). Japan’s court system is divided into four tiers. The first tier of courts is the 438 summary courts which deal with minor criminal cases and civil cases for less than 1,400,000 yen claims. The second is the district courts, the principal courts of first instance, which deal with most of civil, criminal and administrative law cases. Since 2009 all district courts and some of their branches have held criminal proceedings with lay assessors (saiban-in) for the most serious criminal offenses involving possible sentences of death or life imprisonment. There are 50 district and family courts with additional 203 branches. In addition to adjudicate cases, district courts, family courts, and summary courts also offer mediation services. There are eight H igh Courts . There also exists the Intellectual Property High Court . There is one Supreme Court with rule-making power.
Independence of judiciary is guaranteed by the Constitution. Most judges are virtually life-time employees of a national governmental bureaucracy. The judgments of the Supreme Court are considered to be binding on lower courts. The decisions of the high courts are very influential in the lower courts. Judicial decisions regarded as being important, are compiled and codified. Judiciary statistics can be found on the Courts in Japan website.
1.Legislation—Bills, House and Committee Minutes
Legislative power is reside in the National Diet and is the only law-making body in Japan. There are two chambers of parliament: House of Councilors Upper Diet (Sangi-In) and House of Representatives —Lower Diet (Shūgi-In). Japanese politics encompasses the multi-party system. Many bills are drafted by government agencies and submitted through the Cabinet and posted on their websites . Also, Diet members can draft and submit a bill if there are a certain number of cosponsors. The bills since the 142 Diet Session (1998) can be found on the House of Representatives web site. The bills from the ministries and other agencies can be found on the web site of the prime minister and his cabinet, Kankōchō linku shū .
Statutes are promulgated after they are passed by the Congress. The emperor promulgates them and new legislation is published in Kanpō ( Gazettes ). They are available at no cost in PDF format at the Website of t he National Printing Bureau . The last five days of Kanpō are available to the general public. Kanpō is updated weekly on the Prime Minister’s Office web site after the legislation has been enacted in the Diet. At the website of House of Representative, Seitei Hōritsu , laws passed by the Congress since 1947 are available except for most recent ones. Minutes of each House and committee are searchable at the Website supported by the National Diet Library.
Since the Freedom of information Act was passed in May 1999, numerous resources for governmental information has become available on the Web. Before the legislation was enacted, many governmental sites had started to provide their information via the Internet. On the web, there are numerous resources for government information such as current laws, cabinet orders, and ministry ordinances, white papers , and statistical data . Also, there is an index, Nihon Hōrei Sakuin , to current and abolished laws, treaties, regulations, and bills. E-Gov is a portal website of government information administered by the Ministry of Internal Affairs and Communications. Also, currents laws can be found through a commercial database, Hōko . Accumulated Government documents can be searched on the site of theGovernment Printing Office .
The Roppō is a collection of Japanese laws, and the most important legal material for Japanese legislation and regulations. “ Roppō ” comes from the enactment of six fundamental codes: the Constitution(Kenpō), the Civil Code (Minpō), the Code of Civil Procedure ( Minji Soshōhō ), the Commercial Code (Shōhō), the Criminal Code (Keihō), and the Code of Criminal Procedure (Keiji Soshōhō). Roppō is an unofficial legal material and various types of Roppō are published by different publishers with various formats such as DVD-ROM, CD-ROM, and Web products. The Roppō Zensho , 六法全書 , published annually by Yūhikaku is widely used in Japan. Also, there are open access websites for each code and published in CD-ROM format. Hōrei Zensho published by Kokuritsu Insatsukyoku covers laws since 1867 and has a subject and word index. As a long standing series of English translations of Japanese laws, the EHS Law Bulletin Series has been published by the Eibun Hōreisha since 1946. As one of the objectives of the Justice System Reform in Japan, English translations of Japanese laws have become more available since 2004, although the definitive version of Japanese law is in the Japanese text, and there are no official English translations of Japanese laws.
Except for Supreme Court cases, judgments are reported at a small percentage, and an unreported judgment can be obtained by requesting a copy in person at the record office of each court. Lower court decisions of intellectual property cases and labor law cases have been available since July 1999. The case naming method is different in Japan. There is no actual case name system. The name of the court and date of the judgment are generally used to search a case. Parties’ names are not used if individuals are parties. Therefore, parties’ names are not queried in searching cases. Names of Corporations may be used for the title of the case name.
Official case reports in Japanese, which have been published since 1947, are available on the Saibanrei Jōhō website, and the case reports, including administrative and labor laws related cases, are searchable by keywords. Official case reports in Japanese language from the Supreme Court and other lower courts in the last three months, as well as case reports from the Intellectual Property High Court in the last one month are also found at the Saikin no Saibanrei Website for recent judgment reports. English translations of some of the Supreme Court’s judgments can be found on the Supreme Court Website .
Several court report journals are published. Each issue has case interpretation and analysis, the essential elements of the court decisions, and comments. Hanrei Jihō published by Hanrei Jihōsha includes important cases and gives key point of judgments. Juristuto (Jurist) published by Yūhikaku, which is equivalent to the Harvard Law Review, features main topics with several articles and reports on new legislation and notable cases with interpretation and analysis. Jurisprudence books including treatises, dictionaries, and journals are produced by numerous publishers mainly in Japan, and three major legal publishers are Yūhikaku, Dai-Ichi Hōki , and Gyōsei.
The commercial databases have played a vital role in Japanese case law research because cases are not fully published. In addition to Westlaw Japan and LexisNexisJP , there are three more full text databases with different functionalities. The text of t hese databases is in Japanese language. LEX/DB Internet produced by TKC also produces a legal database called “ Law Library ,” which is customized for a law school curriculum. Dai-Ichi Hōki has a full text database called D1-Law.com .
5.Citation Form/Romanization/Japanese Era Names
There is an English version of the citation form published by the University of Washington in1967 entitled Form of Citation of Japanese Legal Materials. On the Web, Keiō University has the websites, how to cite a case and how to cite a law , Kobe University digitized Japanese legal citation in Japanese. Also, in 2014, the Hōritsu Bunken tō no Shutten no Hyōji hōhō was published. University of Washington Manual of International Legal Citation is also a useful tool. Another important resource is the scheme for Romanization. The Library of Congress has a list of Romanization . Also, the Japanese era names and conversion website will be a useful tool.
Reference: Dan Fenno Henderson, “Form of Citation of Japanese Legal Materials” (1967) 42 Wash. L. Rev. 589.
6.Law Journals/ Law Reviews
Jurisuto , Hōgaku Kyōshitsu , Hōritsu Jihō and Hōgaku Seminā are all widely read legal magazines. Hōgaku Kyōshitsu is for law school students and is a companion to the Juristuto , with comments on cases by scholars. Hōritsu Jihō, published by Nihon Hyōronsha, has a list of comments on recent cases. Hōgaku Seminā published by Nihon Hyōronsha gives descriptions and commentary on cases.Minshōhō Zasshi published by Yūhikaku is a leading journal on private law and cases related to civil and commercial codes. NBL (New Business Law) published by Shōji Hōmu focuses on the fields of business, property, and credit. Gendai Keijihō published by Gendai Hōritsu Shuppan covers criminal cases. Legal journals on Japanese law in English are Asian-Pacific Law and Policy Journal (APLPJ), Asia-Pacific Journal: Japan Focus , Hitotsubashi Journal of Law & Politics published by Hitotsubashi Daigaku, and the Journal of Japanese Law published by Deutsch-Japanische Juristenvereinigung (Doku-Nichi Ho ̄ritsuka Kyo ̄ kai). For social security law and labor law, the Ōhara Institute at Hōsei University provides a database of articles in these fields.
Because of scholarly electronic publishing initiatives in Japan, many universities make their law reviews accessible through their academic institutional repository program. Institutional repositories such as JAIRO are reaping both short term and ongoing benefits for universities and legal scholars around the world. Articles in law reviews digitized in their institutional repository on the Web are searchable through Google Scholar and there is a link to the CiNii Articles website. CiNii Articles produced by the National Institute of Informatics provides links to an online catalog of over 1,200 academic institutions in Japan and access to over twelve million books and journal titles, and is a gateway to academic articles in the National Diet Library’s Japanese Periodicals Index Database.
For news, Asahi Shinbun , Mainichi News , Yomiuri News and Nihon Keizai Shinbun distribute their stories via the web. Asahi Shinbun has also had a full-text commercial database for their news since 1986. For English readers, The Japan Times , Nikkei Net and Mainichi Daily News distribute legal news in English.
The legal blogosphere in the United States has been active for quite some time; however, law-related blogs are a relatively new media for reporting Japanese legal news. Japanese Law Blog garners current news and information about Japanese law. Japanese Law and the Asia-Pacific focus on Japanese law in Asia-Pacific Socio-Economic content. The Australian Network for Japanese Law (ANJeL) also promotes communications on Japanese law in Australia. ” Attony Ochiai’s Page ” provides law related news daily. The number of lawyers and law professors’ blogs is small at this time. Blogs have become an increasingly popular and powerful resource for finding Japanese law-related information, Global Legal Monitor Japan .
Numerous publishers produce law books including treatises, dictionaries, and journals in Japan. Some legal publishers have started to provide their book catalogs online. Examples include Nihon Hyōronsha , Yūhikaku , Dai-Ichi Hōki , Hanrei Timuzusha and Shin-Nihon Hōki . Shin Nihon Hōki Shuppan and Yūhikaku make legal e-books available.
Yūhikaku is a well-known legal publisher in Japan and publishes a compiled version of laws and cases such as the Roppo the Compendium of Laws – a collection of codes, important laws and ordinances often used by legal practitioners. Some publishers in Japan distribute CDs containing cases that have been published in print case reports, and they also support online databases similar to Westlaw and LexisNexis.
- Japanese Legal Research : University of Washington
- Legal Research Guide: Japan : Library of Congress
- AsianLII : Asian Legal Information Institute
- World LII : World Legal Information Institution
- Japanese Law Research Guide : University of California Hastings College of the Law Library
- KITIE : Keiō University
- Japan Legal Information Institute : Nagoya University
- Hōgaku Hōritsu : Hokusei Gakuen University
- Risāchi Nabi National Diet Library
- Rīgaru Risāchi no Dōgubako Osaka University
- Mariko Ishikawa, Noriko Murai, Yasuko Fujii, Makoto Ibusuki. 2012. Rīgaru Risa ̄ chi = Legal Research. To ̄ kyo ̄ : Nihon Hyo ̄ ronsha.
- d) Legal Research Study in Japan
- Jōhō Kanri Web
- Rīgaru Risa ̄ chi Nyūmon Legal Research for the Practical Tips 55 Jōhō Kanri 511 (2012)
III.Japanese Law by Topics
The body of private law, Civil Code (Law No.89 of 1896) was promulgated in 1896 and went into effect in 1898. The code was heavily influenced by the French and German Civil Codes. After the American occupation in 1945, the Code remained unchanged except for the sections of the fifth (family law) and the six (inheritance law), which had followed Japanese feudalism traditions. The first Code of Civil Procedure (CCP) was legislated in 1891 modeled on the 1877 German CCP and overall revisions were made in 1927 modeled after Austrian CCP. Although the postwar modifications revised the CCP in an Anglo-American style to introduce the adversary principle at the oral argument stage and to confirm the principle of the rule of law and constitutional safeguards for fundamental human rights, the basic structure remained in effect until 1996. More recent amendments of the CCP (Act No. 109 of 2006) were in 2003 to place greater emphasis on expediting proceedings stressed in the 2001 recommendations of the Judicial Reform Council.
- Mark Levin, ” Civil Justice and the Constitution: Limits on Instrumental Judicial Administration in Japan ” (2010) 20 Pacific Rim Law & Policy Journal 265.
- Yasuhei Taniguchi, ” How Much Does Japanese Civil Procedure Belong to Civil Law and to Common Law ?” (2009) paper presented at the IAPL conference, Toronto, accessed March 29, 2014.
- Yasuhei Taniguchi, 2007. “The Development of the Adversary System in Japanese Civil Procedure” in Dan Foote (ed) Law in Japan: A Turning Point. Seattle, University of Washington Press.
In 1880, the Meiji Government adopted the first official Panel Code, based on French models, such the Napoleonic Code. In 1907, a new code was lay down and several amendments were made since then. The most important revision was in 1947 pursuant to the principles of the new postwar Constitution, which fully guarantees fundamental human rights. The Code of Criminal Procedure, Chizaiho , was legislated in 1890. A new Code of Criminal Procedure modeled on German law was enacted in 1922. During the post-War legal reform under the American occupation, the present Code of Criminal Procedure was enacted in 1948 to reflect the growing influence of the Anglo-American legal system. Therefore the criminal justice of Japan adopted a mixture of characteristics of the continental European legal system in Penal Code and an Anglo-American style in Code of Criminal Procedure. In order to reinforce the Japanese judicial system, a bill was enacted in 2004 to reinstitute a qusai-juri (saiban-in ) system. Japan had a jury trial law since 1923 until 1943. The Code of Criminal Procedure was revised and the jury trial came in to effect in 2009.
- Outline of Criminal Procedures in Japan Supreme Court of Japan accessed September 3, 2014.
- The Code of Criminal Procedure (ACT NO. 131 of 1948) , accessed March 29, 2014.
- Kazuko Ito, “ Rule of Law and Criminal Justice Reform in Japan , ” (2011) 6 National Taiwan University Law Review 367. TU L. Rev. 367 (2011)
- Law in Japan a Turning Point. 2007 Daniel H. Foote (ed) Seattle, University of Washington Press.
- Makoto Ibusuki, “ Quo Vadis ? First Year Inspection to Japanese Mixed Jury Trial ” (2010) 12 Asian-Pacific Law and Policy Journal 25, accessed September 3, 2014.
- Kent Anderson and Emma Saint, trans. ” Japan’s ‘quasi-jury’ (Saibanin) Law ” (2005) 6 Asian-Pacific Law and Policy Journal 233, accessed March 29, 2014.
Japanese civil law normalizes any contracts that are not complied with public policy to be invalid. Although it may protect consumers from extreme cases, it doesn’t regulate an adequate protection against product defects. In May 1968, the Consumer Protection Fundamental Act was legislated as the basic framework for consumer policies and was amended in May 2003. Based on various measures to secure legal protections, the Consumer Protection Fundamental Act was renamed and enacted as the Consumer Basic Act in May 2004.
Aftermath of the collapsed Bubble Economy in Japan, some general civil rules for relations between consumers and business ventures were launched in the 1990s and onward to meet the challenges of the globalized market by implementing deregulation for a market-driven and consumer-oriented marketplace economy. The Product Liability Act (Law No. 85 of 1994) was promulgated in 1995. It defines the key terms of product, defect and manufacturer.
The Consumer Safety Act (Law No. 50 of 1999) was enacted in 1999 and amended in 2012. It ensures fair interaction between service providers and consumers and consumers’ safety. The lack of inherent information and power imbalances in markets justify government intervention for greater transparency about the goods and services, promotion of competitive markets, prevention of fraud, education of customers, and elimination of unfair practices. Later on Forty Eighth Cabinet Office issued Consumer Safety Law Enforcement Regulations ( Ordinance No. 28 August, 2009) to enforce consumer safety regulations in 2009.
The Consumer Contract Act (Law No. 61 of 2000) took effect in May 2000 to be applied to every contract between consumers and business operators to regulate not only unfair consumer contract, but also unfair commercial practices. The Whistleblower Protection Act ( Act No. 122) was enacted in June 2004 to protect whistleblowers from disadvantages treatments, in-house bodies of corporations, administrative institutions, and other institutions outside corporations.
- Shōhisha no Mado (Consumers Window) 消費者の窓
- Luke Nottage, “Product Liability and Safety Regulation” in Gerald McAlnn(ed). Japanese Business Law (Kluwer 2007)
- Masahiko Takizawa, ” Consumer Protection in Japanese Contract Law ” (2009) 37 Hitotsubashi Journal of Law and Politics 31.
- Jason F. Cohen, ” The Japanese Product Liability Law: Sending: A Pro-Consumer Tsunami through Japan’s Corporate and Judicial Worlds ” (1997) 21 Fordham International Law Journal.108.
The first consumer policy regime was established in the mid-1960s in Japan to promote a pro-consumer attitude in Japan’s legal and corporate spheres. In order to enhance the effectiveness of such legal regulation, it cannot avoid combining legal polices to stabilize and promote the consumers-enterprises relationship. Due to the expansion of the globalised market and the growth of internet transactions, consumer related troubles have rapidly increased. The Consumer Policy Committee of the Quality-of-life Policy Council made recommendations in April 2002 to establish new consumer policies for the 21st century and to ensure consumer rights to provide necessary information for safety of products. The recommendation included the effectiveness of polices and the basic direction and measurement to rationalize contracts with consumers.
- Consumer Policy Regime in Japan
- Consumer Affairs Agency Government of Japan
Although the labor law in Japan was legislated under the occupation of GHQ of the United States, much of Japanese labor law is adopted from German, English, and French legal sources. Japan’s labor law is comprised by the Constitution as its apex and the civil code, criminal law, and administrative regulations. The fundamental provisions in the Constitution define labor law principles and rights in Articles 25, 27 and 28. The basic principle governing the legal regulation in the labor law reflects the systems of rights and obligations in related laws.
The Civil Code and the Labor Standards Act (Law no. 49 1947) regulate the employment contacts between individual employers and workers. The Labor Standards Acts provides the basic concepts of a labor contract, as well as the methods for the wage decision, calculation, and wage scale. Under the Civil Code, the minimum standards for working conditions and industrial accidental compensation systems were established. The Civil code provisions in Article 12 endow the collective bargaining agreement with a binding effect on the labor contract. In 2013, The Labor Contracts Act was amended that employees are entitled to convert a fixed term contract to an indefinite term employment contract.
b) Gender Discrimination
The Labor Standards Law governs the relationship between labor and management. Article 4 of the Labor Standards Act prohibits discrimination in pay based on gender. A legal principle based on Article 90 of the Civil Code to nullify any juristic act has been developed by the courts to enforce the Constitutional principle of equality in Article 14 and to supplement to limited protections again gender discrimination outside of wage considerations in the Labor Standards Law . The United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) was ratified by the Japanese government in 1985, and the first version of the Equal Employment Opportunity Law was legislated and it was revised in 1997 to strengthen the legal mechanism against gender discrimination. Further revisions were made to EEOL in 2006 to broaden the applicability of the EEOL to both female and male employees and to add provisions addressing demotion, alternation of employment status, and coercion to forceful retirement.
- Labor Laws of Japan
- 2012 Amendment Act on Securing, Etc. of Equal Opportunity and Treatment between Men and Women in Employment
- Robbi Louise Miller, ” The Quiet Revolution: Japanese Women Working around the Law ” (2013) 26 Harvard Women’s Law Journal 163.
- Dan Tidten, “Equality-Oriented Policies in Japan” (2012) 33 Journal of Japanese Law 51.
- Megan L. Starch,” The 2006 Revision to Japan’s Equal Opportunity Employment Law ” (2007) 16 Pacific Rim Law & Policy Journal 551, accessed March 29, 2014.
- Kazuo Sugeno and Leo Kanowitz trans. 1992. Japanese Labor Law. Seattle. University of Washington Press.
5. Alternative Dispute Resolution (ADR)
In Japan there are three types of ADR: Judicial (Court-Annexed), governmental (administrative), and private. In lieu of court proceedings, Judicial ADR is regarded as a preferred approach to conciliate civil disputes and conflicting domestic relations. The first conciliation system (chōtei) was established by the Landlord-Tenant Conciliation law of 1922 (No. 41, 1922 Shakuchi Shakuya Chōtei Hō ) to mediate the dispute from the outset of the proceeding. Also, there are a subsequent series of laws treating specific cases of conciliation, such as Farm Tenancy Conciliation Law of 1924 (No. 18, 1924 Kosaku Chōtei Hō), Commercial Affairs Conciliation Law of 1926 (No. 42, 1926 Shōji Chōtei Hō ), Labor Disputes Conciliation Law of 1926 (No. 57, 1926 Rōdō Sōgi Chōtei Hō ), Monetary Claims Temporary Conciliation law of 1932 (No. 26, 1932 Kinsen Saimu Rinji Chōtei Hō ). In 1951, the Civil Conciliation Law [Minji Chōtei Hō] was solidified in line with the socioeconomic and democratization movements in Japan to institute the general judicial conciliation system with special provisions for various kinds of disputes.
Governmental disputes arising in the areas of their respective administrative authorities are handled by their own ADR systems. For instance, the National Consumer Affairs Center itself serves as an ADR institution to settle consumer complaints or to prevent consumers from any damage by raising consumer awareness. The labor or union related disputes and the issues on the pharmaceutical industry are overseen by the Ministry of Health and Labor. These administrative ADR programs often offer consultation, mediation, and adjudication/arbitration services.
As part of the 1999 Justice System Reforms, the Law on Promotion of Use of Alternative Dispute Resolution was enacted in 2004 ( No. 151 of 2004 ) to stipulate the authorized organizations and to promote the use of arbitration by such organizations. The new Arbitration Act establishes the fundamental ADR policies and a certification scheme for conciliation and mediation services delivered by private ADR and complies with the United Nations Commission on International Trade Law ( UNCITRAL ) Model Law .
Source - PTI