What's New Index vol.1

June 19, 1998 I. A Proposal for Reform of the Judicial System The 21st Century Policy Forum Japan has proposed two reform plans to the Council on the Reform of the Judicial System which has been established by the Cabinet to study the judicial system in the twenty-first century. Over the next two years, the Council will discuss measures to reform the Japanese judicial system. The following articles describe the reform measures as proposed by the 21st Century Policy Forum Japan. The 21st Century Policy Forum Japan Committee on Legal Policies Members: Yasutaka Abe Professor of Law, Kobe University (representative) Junji Annen, Professor of Law, Seijo University Yukio Uehara Professor of Law, Kokushikan University Yoshinobu Kitamura Associate Professor of Economics, Yokohama National University Katsuya Tamai Professor, Research Center for Advanced Science Technology, Tokyo University Hideo Fukui Professor of Sociology, Hosei University 1. Basic Principles of Judicial Reform The Japanese judicial system enjoys reasonable trust from citizens, although it may often fail to meet their expectations in the ways that are time and money consuming, unfriendly and sometimes unfair or inappropriate. Although it is said that Japan is a society ruled by law, government funds for the administration of justice are very limited, the number of lawyers is considerably lower as compared to other industrialized countries and law enforcement often is not taken seriously. It is also unusual for an industrialized country not to have courts or other establishments devoted exclusively to handling administrative or intellectual property litigation. The role of justice in a legal dispute is so limited that it is sometimes criticized as "20% justice". In today's world, due to deregulation, administrative measures alone can no longer control many situations. Administrative procedures often allow a situation to get out of hand and then a legal resolution must be sought. Corporations and individuals are now often required to assume greater responsibilities so the role of justice is becoming more and more important. Therefore, it is critical to reform the judicial system as rapidly as possible so that it can respond quickly, be fair and practical and remain in touch with individuals. The fundamental requirements of judicial reform are to increase the lawyer population, increase government judicial funding for the justice system and improve the system infrastructure. 2. Increasing Lawyer Population The reason why the Japanese judicial system is so small and therefore is unable provide adequate services is that the number of lawyers is considerably less than that of other industrialized countries. Increasing the number of lawyers who have passed the bar examination would enable Japanese justice system to: - locate lawyers in areas which presently have no or very limited legal services; - encourage individuals to seek the assistance of lawyers more frequently in order to resolve disputes, whether they involve a small amount of money or constitute a complex case; - improve legal services such as providing legal advice; and - increase the number of lawyers who can become judges and prosecutors. When these changes take effect, the fundamental conditions of the proposed new judge selection system would be met. Ministries and corporations can accommodate more licensed lawyers and overall legal procedures can be improved. Currently, legal education is based on the premise that a difficult bar examination determines that only the best talent succeeds. However, it makes more sense to increase the number of lawyers so that there is greater competition. As a result, only the best lawyers will survive. Some critics worry about "bad" lawyers, but basically, it should be left to the market to determine whether such "bad" lawyers survive or are driven out of business. The number of individuals who will pass the bar examination have been dictated by the capacity of the Justice Training and Research Center and by the sources for financial support of trainees. Since the goal is to increase the number of lawyers dramatically, training may be better off being handled by the bar association, perhaps even at no cost. It is also important to reform the legal education system. In order to train high quality lawyers who have a global outlook and are able to lead society, we suggest that a new training system be introduced. For example, some existing university law facilities could be reorganized to establish law schools with the provision that those who satisfy minimum grade requirements at these new law schools should be given favorable treatment in the bar exam. The new curricula should include practical training in the various areas of law as well as provide a broader education in such subject fields as economics, politics, sociology and policy study. The present system of appointing judges should be changed from that of a protected career system to one in which candidates are selected from large pool of lawyers who have closer ties with citizens than do bureaucrats. The number of judges in the lower courts, whose term limits are set at ten years by the Constitution, should be drastically increased. The Constitution determines that the Cabinet reserves the right to appoint judges. The Cabinet should clarify exactly where responsibility lies and enforce its right by reviewing opinions from various fields. It would also be a good idea to appoint university law professors as well as lawyers to act as part-time judges. The requirements for obtaining a professional law license should be lowered so that journalists and researchers can also be appointed as judges. This kind of government and public exchange can also be applied to prosecutor positions. 3. Increasing Government Funds for the Judicial System Japan has not invested enough in its judicial system and so the result is a low standard of justice. It is necessary to strengthen the law enforcement system by dramatically increasing the number of judges and clerks. The legal aid system should also be overhauled so that the weak can have access to justice easily and complex disputes can be solved legally. 4. Improving the Judicial System Infrastructure Reforming the Supreme Court The responsibility of the Supreme Court is to determine the final interpretation of the law and the constitutionality of legislation. Currently, the Japanese Supreme Court appoints an investigator to each case. In contrast, Germany and the United States appoint an investigator to each justice, and that justice handles his cases with his own opinions and responsibilities. This system may be more reasonable. Candidates for Supreme Court justices are selected from variety of field and each field is given a slot for a position. However, it is better idea not to take this system too seriously in order to select the best talent. The Cabinet should publicly review a wide range of opinions from every field before deciding upon an appointment. Also, the Supreme Court should be divided into three smaller sections with each section specializing in a different area, such as civil, criminal, administrative or labor issues. Improving Special Courts The most ideal way to try special cases such as administrative matters, intellectual property cases and labor issues is to establish special courts, similar to those in the German court system. District courts and superior courts could also establish sections which handle these cases. The Cabinet can also appoint judges who are professionals in these areas. Eliminating Monopoly by Lawyers It is reasonable for professional lawyers to monopolize law suit representations so that legal proceedings are facilitated. Providing legal advice outside the court, however, does not directly influence people's lives or public health, nor does it use the insurance provided by the government. It is limited to private financial matters so there is no reason to allow lawyers to monopolize this area of business. Critics point out that it would be possible for racketeers called "Jidanya," who have no legal background, to provide services at considerable cost if the monopoly is loosened. In this case, those who improperly provide legal advice should be prosecuted. It is important to ensure that consumers have the right to decide which services they will use. For the weak, government can expand opportunities for access to legal aid, as mentioned above. Expanding Legal Business Under the current law, a lawyer who wishes to obtain a management position at a corporation or be employed by a company, must obtain permission from the bar association. We propose to eliminate this system so that their legal talent can be more widely used. A lawyer's office should be able to become a legal corporation, so that its management is professionalized and is better able to respond customer demand. Lawyers should also have the opportunity to be appointed as government officials. We propose to reform the Defense Law [the current law which is applicable to lawyers and their practice] based upon the objectives described above. 5. Those Involved in the Reform Process In undertaking judicial changes, it has been the custom to obtain a supplementary Diet resolution which seeks consensus from the Japan Federation of Bar Associations, the Ministry of Justice and the courts, collectively called the "Three Powers of the Law." However, these three powers, an intrinsic part of the justice system, probably are unable to reform themselves appropriately. Reform should be entrusted to the legislature, which would provide information to the public. If there is a problem, they should consider amending a reform bill or rejecting it instead of merely adopting a supplementary resolution. 6. Judicial Reform is Legislative Reform The reform proposals described above are not in themselves sufficient to complete the reform of the judicial system. It is necessary to reform the law on which justice depends. This goes beyond judicial reform to legislative reform. Here, we suggest a few points related to legal reform. First of all, the language and expression of the law should be clarified and written in as great detail as possible to minimize disputes over differences in interpretation. If the obscureness of a law presents a problem and the issue is brought to court, it should be clarified as soon as possible by amending that law. There are a great number of laws which are unreasonable, potentially disputable, dysfunctional and which may infringe upon the protection of rights. It is critical to eliminate these flaws as much as possible and to focus on improving laws. Since the bills that are submitted to the government always receive ministry interference, focus should be on legislation by lawmakers. To meet this objective, it is necessary to expand legislative organization, funding and staff. December 11, 1998 II. Establishment of the Committee on Judicial Reform -The Way to Judicial Reform- 1. Main Core and Structure of the Reform Bill It is time for judicial reform. The last phase is legislation in the Diet. In the traditional procedure, the Ministry of Justice first obtains consensus from the "Three Powers of the Law," creates a reform bill and then submits it to the government who then reviews the bill to make final decision. Our suggestion is to change this procedure. We believe that the "Three Powers of the Law" themselves have a problem that needs to be addressed before real judicial reform can take place. Reform can not be carried out effectively as long as the "Three" are directly involved in the reform discussion. During the administrative reform process, the administration that was the target of the reform could not participate in the discussions. The "Three" should follow this example. A draft reform bill should be created by an organization independent from the "Three." Since purpose of reform is to establish a user friendly judicial system, the draft bill should be created from the users' point of view. The traditional procedure that determines how the justice system works is controlled exclusively by the "Three," who are the providers of legal services, not the users, and so, is therefore inappropriate. For this reason, we suggest the establishment of a "Committee on Judicial Reform" in the Cabinet. The following points should be taken into consideration for this purpose. Objective The objective of establishing a "Committee on Judicial Reform" is to set basic policy for reforming the current system of justice overall in order to establish a better system which will provide better service to citizens. Legal Status The Committee on Judicial Reform is a government organization based on Article 8 of the National Administrative Organization Law. The government will create the Judicial Reform Act based on the policy set by the Committee on Judicial Reform. Each policy that obtains consensus will then be proposed as a bill. Although the Special Investigation Committee on Judicial System Review was organized and a new judge selection system was proposed in the mid 1950's, the bar associations opposed the idea and nothing happened. So as not to repeat this mistake, the government should be responsible for respecting and carrying out the report made by the Committee on Judicial Reform, following the example of the administrative reform process. Report Committee on Judicial Reform is to submit a final report to the government within two years. Members The members of the Committee on Judicial Reform should be set at thirteen or less. Those who have their own opinions concerning reform and are willing to work to realize the reform the judicial system so that it can provide better service to citizens should be considered as candidates. The appointed members should disclose their opinions to the public. Not every profession or industry need be represented on this Committee. For example, if someone representing a bar association is appointed, some may think it necessary to appoint representatives from other "legal circles" such as the Ministry of Justice and the Supreme Court. If as representative from industry is appointed, then a representative from a labor union must be appointed, and so forth. As a result, appointment discussions would be dominated by adjusting each field's interest, and we could well end up with incomplete reform. The selection process should exclude this kind of representative system, but instead focus on each qualified candidate who supports the basic policy reform and who can identify present negative conditions and illnesses, and the come up with a prescription for reform. Office The Committee on Judicial Reform will require an office to handle its administrative work. This office should be established in the Council for Domestic Affairs of the Cabinet. Ministry of Justice and Supreme Court staff will not be allowed to be committee members. Public Hearings Whenever necessary, the committee should hold public hearings at which licensed professionals will provide suggestions as to how the judicial system can better serve the needs of citizens. Minutes of Meetings The minutes of the meetings held by the Committee on Judicial Reform and materials submitted to the meetings should be open to the public. The minutes may also be posted on the Internet, if possible. Diet Response The Diet should give serious consideration to the fact that the present justice system, established after World War II as one of the three constitutional powers, has come to an important turning point. Their task is to establish an organization that examines the future of Japan's judicial system and, at the same time, to discuss this issue as a legislative body. 2. Basic Policy of Reform Discussion The Committee on Judicial Reform should begin its work on reform as soon as possible. First, it must recognize that the Japanese judicial system does not satisfy the needs of citizens; e.g. it is bureaucratic, unfriendly to citizens, sometimes unprofessional, slow to protect the rights of individuals, not very effective and reluctant to protect human rights. Secondly, as we enter an era of increasing deregulation and personal responsibility, the role of justice is becoming more and more important. So that the judicial system can provide better service to citizens, we suggest a reform policy with the following basic objectives. Based upon constitutional fundamentals and transparent rules that are fair and just, a rapid dispute settlement process for the three most important judicial areas - civil, administrative and criminal - should be set up. "Bureaucratization" of the courts must be avoided. Courts should be friendlier to citizens. Justice should be more accessible to citizens. A social system should be created where the weak can receive full legal protection. Lawyers should raise their level of professional knowledge to international standards. To expedite deliberation, the Committee on Judicial Reform should be given a choice of either completing the total assignment or developing the skeletal plan and then delegating it to another committee to complete, because such a division of labor may lead to faster enactment of new legislation. In this case, there has to be a mechanism to provide oversight work on the new committee. 3. Carrying Out Reform After content and candidates are carefully reviewed, the Cabinet must assume the political responsibility to see that the reform process is carried out. The approaches used by the Committee for the Promotion of Decentralization deserve a criticism. The Committee delegated the responsibility for negotiating with each ministry to those members who do not have to suffer any political consequences. Bureaucrats, like those on the Committee for the Promotion of Decentralization, also do not have such political responsibility. Furthermore, it is impossible for much needed reform to be realized as long as consensus by bureaucrats, who are part of the system to be reformed, is required. Most of the existing councils in the government are made up of members who represent the particular interests of their ministries, and their discussions and decisions are also influenced by these interests. The Committee on Judicial Reform should not follow their example. As an advisory committee, it should carefully review opinions of those concerned, lawyers and other professionals and make suggestions from the viewpoint of all citizens. Then the Cabinet will undertake how these suggestions can be reflected in legislation and in the budget and tax systems, and then carry them out. 4. Notes In addition, the expected results from above mentioned basic objectives are not universal. The following points, as well as others, could be subjects of disagreement. Judicial Reform is Legislative Reform In order to carry out the important work of judicial reform, such as eliminating trial delays and improving lawyer services, existing laws should be reorganized so they are clear, objective and easily predictable. Unclear laws causes disputes and artificially creates demand for legal services. Just as important as the provisions of judicial reform which will increase the number of lawyers is the new legislation which will prevent false or frivolous demands for legal services. It also is not too much to say that judicial reform also means legislative reform. Eliminating Trial Delays Currently, each judge must handle too many cases, which forces them to recommend settlements in almost every case. As a result, the principle of the rule of law has become a paper tiger. In order to attain swift justice based on the rule of law, we need to dramatically increase the number of judges. We suggest overhauling the selection system for judges, which is now a "career system" in which candidates are selected from the bureaucracy, and consider introducing a new system in which candidates are lawyers who have had a closer relationship with citizens. Diversification of Legal Service Providers Currently, most legal procedures are monopolized by lawyers, but there are a very limited number of lawyers. We suggest an overhaul to this monopoly system as well as increasing the number of lawyers. Specifically, other related professionals such as judicial scriveners, tax accountants, attorneys, certified public accountants, real estate appraisers, administrative scriveners and residential properties trading agents can play greater and wider role. As a result, citizens will have better access to legal services. Ensuring Trial Professionalism There is a need for more professional departments within the courts, such as administrative, intellectual property, labor, scientific and medical. Establishing such departments will enable the courts to process highly professional and technical cases more quickly and accurately.

Index

What's New Index vol.1

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