What's New index vol.2

The Request for the Council on Legal System Reform, under the Chief Cabinet.

By Katsuo Sorimachi Chief Representative, Discussion Group for Legal System Reform,

Recently, the Japanese political and judicial systems, for which the highest authority is the Constitution, have been subjected to pressure for change. The judicial system has not been overhauled for over fifty years . Because of this lack of reform, problems in our daily lives include a shortage of lawyers, inadequacies in our legal education system, the lack of balance between lawyers and other legal professionals, and regulatory controls are too numerous to mention. Under the circumstances, the Law for the Council on Judicial System Reform was passed in the 145th Diet Session on June 2nd, which prompted a discussion on judicial reform. The Discussion Group for the Legal System Reform, with Mr. Katsuo Sorimachi as chief representative, produced a proposal for judicial reform summarizing important points, by subject with comments. This proposal was submitted to Mr. Okiharu Yasuoka, who is serving as Chairman of the Investigative Committee for the Legal System of the Liberal Democratic Party. The following make up the preamble of this proposal.

1. A substantial Increase in the number of Lawyers and Reform of the National Bar Examination

It is not difficult to understand the concept of a shift in the government's role from executive guidance to oversight. However, I wonder how many Japanese can predict the changes in our society which might occur as the result. Japan had maintained a policy of national isolation, which kept the country free from foreign wars but, as a result, it also lagged behind Western countries in the development of science and technology. Since the Meiji era, the country has eagerly adopted modern technologies becoming a Westernized nation. The turbulent times when Japan was at war with most of the world, with the goal of becoming a wealthy military power and the leader in Asia, were over after its defeat. Even though the nation was virtually burned to the ground, the Japanese government and people worked together for a half century to make the country rich. And Japan surprised the world with its "Made in Japan" products, becoming an economic power. It appears to be true that the group effort with joint responsibilities contributed greatly to standardized, high-quality products. However, today people, products and money circulate worldwide, and businesses are eager to merge and form partnerships with foreign companies to survive worldwide competition. Moreover, they are eagerly recruiting superior human resources. This means an end to the life-time employment system, which has guaranteed automatic pay raises for employees based on their length of service without considering their abilities. From now on, the merit system will dominate the labor market. Although there are differences in degree, the Japanese must adopt to the Western approach, in which the strong prey on the weak, whether they like it or not. However, I wonder how many Japanese realize the very substantial changes they will have to face in the near future. And, I wonder if politicians and mass media really understand the scope of these changes. Today, the Japanese are being told to develop a sense of urgency toward reforming the judicial system, because conflicts will increase as free competition accelerates. To solve conflicts arising from tough competition, the number of lawyers in the United States is many times greater than in Japan. By the way, there are arguments that Japan has too many doctors. However, because there so are many doctors, some can concentrate on the research and development of new medical treatments while others are easily available to the public, facilitating good relationships with citizens. So a policy which expands the legal profession is eagerly anticipated, as it will make the lives of its citizens more comfortable. Increasing the number of lawyers, judges and public prosecutors will enable a more rapid settlement of lawsuits. Furthermore, if legal services are more assessable, consciousness of the law will increase .

2. Unification of the Legal Profession

Japan has a legal bureaucratic career system whereby judges are, in essence, trained after their appointment and promoted by transferring within courts. However, there has been considerable criticism of this system. Specific problems noted include: Personnel changes are dictated by the Supreme Court General Secretariat and this leads to bureaucratic control of judges. Judges tend to deliver fact-finding opinions and pronounce sentences from perceptions, which are different from those ordinary citizens because they do not have sufficient social and practical experience in the "real world". A system to realize the independent function of judges and to maintain a democratic judiciary, as well as to unify the legal profession, where practitioners, such as lawyers are appointed as judges, should be introduced as soon as possible. After passing the bar examination, candidates are given training under a unified curriculum. This is perhaps because the assumption is that eventually the concept of a unified legal profession will be adopted. Accordingly, laws and regulations such as the Court Organization Law should be revised as soon as possible to accommodate these changes. While the unification system has not yet been realized, it has become very popular to interchange personnel between judges and public prosecutors. However, such interchange should be prohibited in the future, as a rule, because many problems with regard to the fairness have arisen form this practice in administrative litigation and the criminal cases.

3. Introduction of the Jury System and the Advisory Panel

A self-righteous attitude and a weakening of the judicial system has resulted in a pattern of evasion and a laziness in the administration of justice which could eventually lead to the destruction of the foundation of democratic legal system. The jury system and the advisory panel system should be introduced as soon as possible in order to alleviate public distrust of the court system with trials conducted in such a manner as to reflect the public's sense of justice and commonly shared social values. Article 3 of the Court Administration Law already provides for a jury system in criminal cases. This system should be implemented as soon as possible, while the introduction of juries in civil and administrative cases should be accomplished in stages. Deliberations should begin immediately on such matters as the qualifications and the selection criteria of juries and the term of service which are necessary to implement a jury system.

4. The Establishment of Law Schools (Graduate Schools of Law)

Since the Meji Era, the law departments of Japanese universities have traditionally emphasized the interpretation of law and have focused on annotated cases as a supplement. Worse, in graduate schools (where curriculum for researcher training or specialized courses are offered), one half of class instruction has been devoted to reading foreign materials, which means that they do not provide instruction on legal and practical issues which face the people of Japan. Consequently, many young candidates continue to feel out of place in the real world even after they passed the bar because they really have no outlet to demonstrate their abilities. In order to drastically reform the legal education system in Japan, universities should establish law schools in the Anglo-American style; graduate law schools like those in the UK and America which emphasize the practice of law and produces promising lawyers. Professors in law schools should be selected from practitioners such as retired judges, public prosecutors and experienced lawyers. The mode of legal expertise, that is, the ability to provide a solution to a legal problem, should be cultivated by repetitions in both education and practical exercises. Also, education should include specialized courses for law practice in legal affairs departments in corporations, the skills for drawing up bills in the Diet and the legal work for public agencies. The examinations for law school graduation should be considered as preparation for the legal profession and eighty percent of graduates should be prepared as entry level professionals

5. University Input on Legal Education

Although many successful candidates are produced by the undergraduate programs, they are not provided professional schooling to become legal practitioners at the university level until they are admitted to the Legal Research and Training Institute. This forces them to make a big leap professionally. Universities should allow them to make use of the time before entering the Institute by providing lectures on the Commercial Code, the Civil Code, the Law of Civil Execution, and the Bankruptcy Law. Universities should also take the initiative in promoting regular exchanges of knowledge among the judges, public prosecutors, and lawyers. Also, they should allow students and citizens to participate in these study groups.

6. Sweeping Reform with Regard to the Division of Authority between Lawyers and Other Professions

In order to develop a truly national economy and to improve living standards, many professional systems such as law, taxation business, audit, and management were revamped after the war. Although both individuals and corporations should be able to enjoy legal profits and services, their relationship with lawyers is not ideal. For example, tax accountants are not permitted to deal with lawsuits involving the tax law and judicial scriveners do not have the right of representation in a lawsuit. This denies citizens quick legal remedies and may cause harm to their fundamental human rights. Article 3 and Article 72 in the Lawyers Law, which guarantee lawyers the exclusive right to provide legal services, are considered to be out of date and should be revised as part of the administrative adjustments of professional services with other professions. At the same time, Article 2 and Article 19 in the Judicial Scrivener Law, Article 2 and Article 52 in the Tax Accountant Law, Article 2 and Article 27 in the Social Security Labor Consultant, and Article 1 and Article 19 in the Administrative Scrivener Law should be also revised. The Regulation Reform Committee was established in the Headquarters for the Promotion of Administrative Reform in the Management and Coordination Agency in order to review the division of services of licensed professions with the view toward deregulating these professions. The Committee is scheduled to present concrete proposals by the end of 1999. The Council on Judicial Systems Reform should coordinate closely with the Committee and promote revisions in the licensing systems which will meet the legal demands of the public.

7. Accelerating the Expansion of the Market for Lawyers

Capitalism has spread rapidly throughout the world, and globalized corporate activities and the high volume of telecommunications indicate the vast number of business transactions which take place among countries. As a result, the demand for lawyers with legal knowledge of foreign countries and the expertise to provide these kind of legal services has been growing. Under the provisions of the 1986 Special Law, foreign lawyers are allowed to provide consulting services with regard to the laws of their own countries and to draw up documents in Japan. However, they can neither represent their clients in a court of law due to their lack of legal knowledge and expertise in Japanese law, nor are they able to provide legal counsel for foreign enterprises which wish to expand their business in Japan. This can cause not only a delay in the establishment of the necessary legal services to support the global economy, but also cause huge economic damage to each country. For the present, the partnership between foreign lawyers and Japanese lawyers should be permitted to meet the demand for legal services, which are required for public relations work. Lawyers who have both a Japanese license as well as a foreign license should be legally guaranteed the right to provide services in Japan based on both qualifications.

8. Opening of Comprehensive Law and Economic Firms require Deregulation

Pursuant a three-year deregulation plan, which was decided upon in a March 30, 1999, Cabinet meeting, concerning "the opening of comprehensive law and economic firms," the Ministry of Justice and the Ministry of Finance reviewed the current situation and concluded that it was possible even under the existing law for professionals such as lawyers, certified public accountants, tax accountants and patent agents to share one office and provide their respective services to clients cooperatively. However, it is necessary for them to function organically as a coherent group to provide one-stop service and not as individuals sharing an office building. To be more specific, the responsibility to avoid any conflict of interest as imposed by the laws governing each profession should be modified to some extent and be clarified in advance. In addition, professionals from different fields should be allowed to jointly receive and service a client request, which is not normally permitted under the provisions of the current law.

9. Incorporation of Legal Practices

In order to minimize market competition, the law does not permit the incorporation of private law practices and only individual law offices are allowed. As a result, law firms are usually located in large cities and there are very few in less populated areas . With their small size of operation, management becomes weak. As a result those who need legal services often cannot get them, causing considerable damage to individuals. A law authorizing the incorporation of legal practices should be enacted as soon as possible. This will encourage the establishment of larger law firms with diversified abilities, better management and will ensure freedom to pursue legal activities in Japan. This, in turn, will provide the public with better and faster access to legal services. In defining the role of each lawyer, management responsibility and management strategies, we should refer to the structure of large-scale law firms in the United States.

10. Improvement of the Public Legal Aid System

It is imperative to establish a budget large enough to provide subsidies to those who need legal services both within and outside the court system. A system for public subsidies for legal services by the needy must be established and legal services improved. The public should be informed as to the types of legal support systems that are available as well as the roles and services each Bar Association will provide.

11.Expansion of Legal Aid Services by Public Funding

The Lawyers Law (Article 30:3) prohibits lawyers from working for corporations either as a member of the board of directors or as an employee. However, regardless of the size of corporations, their relationship with lawyers has been increasing and becoming more complex. Therefore, lyers should be allowed to provide counsel on legal issues in order to assure corporations healthy growth. This will also provide lawyers with opportunities to demonstrate their expertise in the corporate world. In the United States, it is very common that employees or directors who are familiar with management are lawyers. For these reasons, Article 30:3 should be abolished in order to allow lawyers to make their services and expertise available within the corporate world to meet the increasing demand for such services. Similarly, the Law should be revised so as to allow lawyers to keep their license (at present their licenses would be lifted) when they become professors in a national or private university or officers in a public institution because analyses of legal problems with industry-university cooperation are more urgently needed today than ever before. College lectures incorporating actual case-studies and research into actual cases are also necessary. Also, the lawyer' license is imperative for instructors and professors in law schools (as stated earlier). In order to develop legal affairs departments within corporations, it is necessary to review the current status. The Ministry of Justice in cooperation with the Japan Federation of Bar Associations should undertake an in-depth survey of legal affairs departments in corporations.

12. Offering Legal Services to Neighboring Asian Countries

In neighboring Asian countries (China, Korea and Southeast Asian countries), international trade has increased remarkably as the current market economy system has improved. From the point of view of international sociology, Asian countries may be categorized as having a pluralistic legal culture, unlike Western countries where each country has developed its own unique legal philosophy embodying system and culture. However, fair rules for free trade and international customs under the WTO system are already in place with legally binding power. In the near future, international standards for accounting and auditing are expected to be adopted throughout the world. Considering these developments, it will be an important international contribution for Japan to provide developing Asian countries knowledge for designing a viable legal system.To be more definitive, it is desirable to offer expertise in the legislative processes which will be necessary to enact legislation as applied to economics, patents and environmental protection as well as to the advantages of having such laws on the book. Even though the budget for ODA (Official Development Assistance) is gradually decreasing under Japan's financial difficulties, the government should focus on the transfer of such intellectual assistance at the government level either through ODA or by other means.

13. Opening the Proceedings of Council on Reform of Judicial System to the Public and Extension of its Term

The term of the Council on Reform of Judicial System is set at two years. The mandate for its thirteen members is diverse and includes many important issues. Therefore, there is a strong fear that these serious deliberations and findings may not reflect citizen input. The Council should give the public the opportunity to express their opinions frankly by means of electronic mail or facsimile. It also should keep the public informed of the progress of its deliberations through press releases or its own home page on the Internet. The Council should be recalled and reorganized six months or a year later to complete deliberations on unfinished business if any issues placed on the agenda of the current term could not be resolved. No issues should be left unattended.

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What's New index vol.2

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