M5 T3 The Japanese Legal system

Question 1

Which similarities with the Chinese legal system are reasons why it is treated as an example of Oriental law?

Answer 1

The philosophical and religious base creates mistrust in the law and litigation, and prefers conciliation and agreement.

Question 2

Which to aspects live alongside each-other in the Japanese system?

Answer 2

Ancestral social values and the imported Western law.

Question 3

Which western law has left its strongest legacy in Japanese private law?

Answer 3

The German system

Question 4

Which western law has left its strongest legacy in Japanese public law?

Answer 4

The US system

Question 5

Are most of the Japanese population urban or rural?

Answer 5

Urban

Question 6

4 stages of the historical evolution of the Japanese law

Answer 6

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

Question 7

Which legal systems were adopted in the modernisation of the Japanese legislation after it opening up to foreign trade?

Answer 7

The European legal system. First the French system and later the German regime.

Question 8

Which style did the first Japanese constitution of 1889 have?

Answer 8

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.

Question 9

When was the current Japanese Constitution promulgated?

Answer 9

Under the American occupation in 1947

Question 10

Three identifiable tendencies from its historical development:

Answer 10

1. The way the Japanese people perceive and use the law comes from the importation of Confucian ideas by the Shintoists.
2. American Common law in the Public law
3. Private law influenced by European law, especially by German law.

Question 11

What is the principal source in Japan?

Answer 11

Law

Question 12

What is the hierarchical structure of Japanese law?

Answer 12

1. Constitution
2. International treaties
3. Legislation enacted by Parliament
4. Government Regulation

Question 13

Can Japanese courts verify whether laws are in accordance with the Constitution or not?

Answer 13

Yes, this is established in the 1947 constitution.

Question 14

Which role does precedence and case law play in the Japanese constitution?

Answer 14

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.

Question 15

Custom and usage is acknowledged as a source of law in Japan. How is it applied?

Answer 15

When the law is silent about the matter and there is an agreement between the parties.

Question 16

What is the political organization of Japan?

Answer 16

Parliamentary monarchy

Question 17

Who is the head of state of Japan?

Answer 17

The emperor who symbolizes the nation and the Japanese unity

Question 18

What embodies the legislative power?

Answer 18

The Diet.

1. House of representatives
2. House of Councillors

Elected by suffrage.

Both participate in the legislative process.

Question 19

What embodies the executive power?

Answer 19

a Council of Ministers. Prime Ministers and his cabinet.

1. Governs the affairs of the nation
2. Represents the State on teh international scene

Question 20

Which legal system has inspired the Japanese judicial system?

Answer 20

The Constitution of the United States of America

Question 21

Which powers are granted the Japanese Supreme Court by the constitution?

Answer 21

1. decree procedural rules

2. Organise the rest of the judicial structure

Question 22

What are the four judicial levels of the Japanese court system below the Supreme Court?

Answer 22

1. eight High Courts
2. District courts
3. Family courts
4. Local courts dealing with minor matters.

Question 23

What does the term Hoso refer to?

Answer 23

lawyers, whether attorneys or judges

Question 24

Why is there a scarcity of attorneys and judges in proportion to the size of the population?

Answer 24

Japanese society is to a great extent governed by informal norms that do not require the intervention of lawyers.

Question 25

In a conflict, people in Japan will prefer;

Answer 25

conciliation

Question 26

What are the three stages that attorneys and judges share in their legal training?

Answer 26

1. obtaining a university degree
2. Passing a very difficult national exam
3. Course of legal practice at the Legal Research and Training institute in Tokyo

Question 27

What is the reformed legal training in Japan based on?

Answer 27

The American model of practical training

Question 28

What does the legal practice of the Japanese attorneys involve?

Answer 28

Litigation. non-judicial legal advice is not developed

Question 29

Why can we say that Japanese law offices are individualistic?

Answer 29

most attorneys works in small groups of two or three

Question 30

How is the geographical distribution of Japanese attorneys?

Answer 30

Mainly centred in Tokyo and Osaka

Question 31

How are women represented in the Japanese legal professions

Answer 31

Very little-
Attorneys: 14%

Judges: 10%

Question 32

Are attorneys the only ones that can practice juridical functions?

Answer 32

No. There are also para-legal practitioners.

Question 33

Who become judges?

Answer 33

the most brilliant students at the Training institute in Tokyo

Question 34

Why can we see a great homogeneity in the Japanese judiciary?

Answer 34

Most judges study at the same four law faculties

1. Tokyo
2. Waseda
3. Kyoto
4. Chuo

Question 35

Are judges in Japan career judges?

Answer 35

Yes. they do not exercise any other profession

Question 36

Does the Japanese judiciary enjoy great autonomy?

Answer 36

Yes. it is administered internally from the Secretariat of the Supreme Court