Are there areas where judicial reform could improve the situation?
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Mr. Nukada
The current law depends too much on the assessment of individual's capacity.
More humane aspects, such as daily life and personal affairs,
must also be taken into consideration by the law. We must
depart from the regulatory and policing approach to human
activities and move to service oriented programs on demand
basis. Instead of a vertical allocation of aid depending
strictly on human capacity, we should see where and what type of
aid and care is needed for each person in order to determine
exactly what type of help and assistance is to be given. Whether
they need representation or the right to nullify a
completed transaction, the situational analysis is going to be
very crucial in finding appropriate types of help.
The personality element is also very important. In certain cases, guardians may not able to make
personal contacts with certain individuals where then can accept
responsibilities. Some individuals may not accept the help
of volunteers. In such cases, governmental officials
may have to assume responsibility, which requires a
separate legal framework.
There are systems in place in France and Germany allowing public offices to assume such
responsibilities. And, in the United Sates and Canada,
when government agencies find a case where aging citizens face
serious abuse by a fraudulent commercial operation, the
government is authorized to designate itself as guardian and
render assistance under its own initiative.
In the United Kingdom, a bill is under consideration to allow the government to
intervene in family affairs, including right to
investigate and search, as preventive measures against
possible abuse, as a part of guardianship system. This is
very important because possible abuse taking place in facilities
may not be able to be detected because the authorities do
not legally have means to investigate in order to verify abuse.
Do you feel that the Japanese system is behind many others in this respect?
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Mr. Nukada
Our system has been two-tiered, consisting of only two categories,
competence and quasi-competence; this has now been
smoothed out to multi-layer system. However, this took place in
France thirty years ago. In Canada, the volunteer system and
compulsory system, which move in tandem, each applicable to both
financial and personals needs, was promulgated in
1992. We have to admit that we are quite far behind.
The Japanese system as a part of the National Civil Code was
promulgated a hundred years ago, and basically there has been no
change since. The whole system was copied after the 19th century
French Napoleonic Code.
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