M5 T3 The Japanese Legal system Flashcards
Which similarities with the Chinese legal system are reasons why it is treated as an example of Oriental law?
The philosophical and religious base creates mistrust in the law and litigation, and prefers conciliation and agreement.
Which to aspects live alongside each-other in the Japanese system?
Ancestral social values and the imported Western law.
Which western law has left its strongest legacy in Japanese private law?
The German system
Which western law has left its strongest legacy in Japanese public law?
The US system
Are most of the Japanese population urban or rural?
Urban
4 stages of the historical evolution of the Japanese law
7th Century BC
The emperor and custom and usage
7th Century AD
Soga clan imported law and Confucianism from China
12th century
Shogun wielded power in the behalf of the Emperor. Political instability
17th century
Proverbial isolation of japan. Conciliation procedures were used to resolve disputes.
19th Century
USA forced japan to end its isolationism. Signed trade agreements unfavourable to it. Shogun resigned
Which legal systems were adopted in the modernisation of the Japanese legislation after it opening up to foreign trade?
The European legal system. First the French system and later the German regime.
Which style did the first Japanese constitution of 1889 have?
A European style
A legislative body: the Diet and an office of Prime Minister
The Emperor did however continue to hold sovereignty over the nation as God’s representative.
When was the current Japanese Constitution promulgated?
Under the American occupation in 1947
Three identifiable tendencies from its historical development:
- The way the Japanese people perceive and use the law comes from the importation of Confucian ideas by the Shintoists.
- American Common law in the Public law
- Private law influenced by European law, especially by German law.
What is the principal source in Japan?
Law
What is the hierarchical structure of Japanese law?
- Constitution
- International treaties
- Legislation enacted by Parliament
- Government Regulation
Can Japanese courts verify whether laws are in accordance with the Constitution or not?
Yes, this is established in the 1947 constitution.
Which role does precedence and case law play in the Japanese constitution?
Precedent is not treated as a legal source.
Case law has a fundamental importance due to the hierarchical structure of the Japanese legal regime. Some are officially published.
Custom and usage is acknowledged as a source of law in Japan. How is it applied?
When the law is silent about the matter and there is an agreement between the parties.
What is the political organization of Japan?
Parliamentary monarchy
Who is the head of state of Japan?
The emperor who symbolizes the nation and the Japanese unity
What embodies the legislative power?
The Diet.
- House of representatives
- House of Councillors
Elected by suffrage.
Both participate in the legislative process.
What embodies the executive power?
a Council of Ministers. Prime Ministers and his cabinet.
- Governs the affairs of the nation
- Represents the State on teh international scene
Which legal system has inspired the Japanese judicial system?
The Constitution of the United States of America
Which powers are granted the Japanese Supreme Court by the constitution?
- decree procedural rules
2. Organise the rest of the judicial structure
What are the four judicial levels of the Japanese court system below the Supreme Court?
- eight High Courts
- District courts
- Family courts
- Local courts dealing with minor matters.
What does the term Hoso refer to?
lawyers, whether attorneys or judges
Why is there a scarcity of attorneys and judges in proportion to the size of the population?
Japanese society is to a great extent governed by informal norms that do not require the intervention of lawyers.
In a conflict, people in Japan will prefer;
conciliation
What are the three stages that attorneys and judges share in their legal training?
- obtaining a university degree
- Passing a very difficult national exam
- Course of legal practice at the Legal Research and Training institute in Tokyo
What is the reformed legal training in Japan based on?
The American model of practical training
What does the legal practice of the Japanese attorneys involve?
Litigation. non-judicial legal advice is not developed
Why can we say that Japanese law offices are individualistic?
most attorneys works in small groups of two or three
How is the geographical distribution of Japanese attorneys?
Mainly centred in Tokyo and Osaka
How are women represented in the Japanese legal professions
Very little-
Attorneys: 14%
Judges: 10%
Are attorneys the only ones that can practice juridical functions?
No. There are also para-legal practitioners.
Who become judges?
the most brilliant students at the Training institute in Tokyo
Why can we see a great homogeneity in the Japanese judiciary?
Most judges study at the same four law faculties
- Tokyo
- Waseda
- Kyoto
- Chuo
Are judges in Japan career judges?
Yes. they do not exercise any other profession
Does the Japanese judiciary enjoy great autonomy?
Yes. it is administered internally from the Secretariat of the Supreme Court
