Law of Japan
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Japanese law was historically heavily influenced by Chinese law and developed independently during the Edo period through texts such as Kujikata Osadamegaki, but has been largely based on the civil law of Germany since the late 19th century.
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[edit] Sources of law
Statutory law originates in Japan's legislature, the National Diet of Japan, with the approval of the Emperor as a formality. Under the current constitution, the Emperor does not have the power to veto or otherwise refuse to approve a law passed by the Diet.
[edit] Six Codes
The main body of Japanese statutory law is a collection called the Six Codes (六法 roppō). The six codes referred to are:
- the Constitution of Japan (日本国憲法 Nippon-koku-kenpō, 1946)
- the Civil Code (民法 Minpō, 1896)
- the Criminal Code (刑法 Keihō, 1907)
- the Commercial Code (商法 Shōhō, 1899)
- the Code of Civil Procedure (民事訴訟法 Minji-soshō-hō, 1996)
- the Code of Criminal Procedure (刑事訴訟法 Keiji-soshō-hō, 1948)
Legislation in Japan tends to be terse. The statutory volume Roppō Zensho, similar in size to a desk dictionary, contains all six codes as well as the other statutes enacted by the Diet.
[edit] Administrative guidance
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While Japanese government agencies generally issue formal regulations for the implementation of statutes, they have very limited formal regulatory power in the absence of Diet legislation. However, when dealing with businesses, they often issue "directions," "requests," "warnings," "encouragements," and "suggestions," with the implication that noncompliant parties will be obstructed by the agency in the future by receiving poorer quotas or less government aid. The Ministry of International Trade and Industry was especially well-known for this practice, generally known as "administrative guidance" (gyōsei shidō).
[edit] Precedent
While Japan has a civil law system and thus technically no binding value to judicial decisions, the precedents of the Supreme Court and the High Courts are commonly referred to and cited as persuasive precedent.
[edit] Civil law
Japanese law is not based on common law system, whose law education invariably start from Contract and Tort then to Criminal Law. Instead, Japanese Law are divided into Six Categories, Civil Code, Commercial Code, Criminal Code, Constitution, Civil Procedural Code and Criminal Procedural Code.
The Civil Code of Japan (民法 Minpō, 1896) was created in 1896. It was heavily influenced by the German Civil Code and emphasized law and order over freedom. It has had a role in the development of civil law in several East Asian nations. It remained substantially unchanged even after the American occupation in 1945. To a large extent it remains essentially intact as of 2006.
[edit] Contracts
Japanese contract law is based mostly on the Civil Code, which defines the rights and obligations of the parties in general and in certain types of contract, e.g. "mandate contracts", "bailment contracts" etc. Thus, the parties need not restate these statutory presumptions. As a matter of practice, contracts in Japan tend to contain very little detail, with the parties working out complications as they arise. Japanese contract law was heavily influenced by the German BGB and is therefore part of the civil law legal system.
[edit] Torts
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Japan's tort system sees considerably less activity than tort systems in Britain or North America. Arguably, one reason for this is that damages are computed conservatively based on the plaintiff's proven expenses and losses, with only a small additional component for non-economic "pain and suffering". There is no system of pre-trial discovery, thus making it difficult for a plaintiff to establish causation. Because Japan does not use juries, judges decide the outcome of cases, and are usually not easy to sway emotionally. Attorneys' fees are based on the amount of damages sought in the suit, not the actual damages won. As a result of these factors, many individuals choose not to sue when their odds of winning seem low, and when they do sue, they tend to sue for small amounts of damages.
[edit] Property
Like several other civil law states, Japan places a great emphasis on the rights of the tenant, and landlords are generally not allowed to unilaterally terminate leases without "just cause," a very narrowly construed concept. Many landlords are forced to "buy out" their tenants if they wish to demolish buildings to make way for new development: one well-known contemporary instance is the Roppongi Hills complex, which offered several previous tenants special deals on apartments. In many cases, however, tenants' rights are circumvented by concluding leases in the name of the actual tenant's employer.
Despite this emphasis on tenant rights, the government exercises a formidable eminent domain power and can expropriate land for any public purpose as long as reasonable compensation is afforded. This power was famously used in the wake of World War II to dismantle the estates of the defunct peerage system and sell their land to farmers at very cheap rates (one historical reason for agriculture's support of LDP governments). Narita International Airport is another well-known example of eminent domain power in Japan.
[edit] Corporate law
Japan's current corporate law is based upon the Corporations Code implemented in 2006.
Under Japanese law the basic types of companies are:
- Kabushiki kaisha (K.K.), similar to an Anglo-American business corporation
- Godo kaisha (GDK), similar to an American limited liability company
- Goshi kaisha (GSK), similar to an Anglo-American limited partnership
- Gomei kaisha (GMK), similar to an Anglo-American general partnership
- Limited liability partnerships (yūgen sekinin jigyō kumiai)
Directors' duties and shareholder liability rules generally follow American precedent.
[edit] Criminal law
| Murder (514) |
7–10 years in prison 3 years at hard labor 3–5 years in prison 5–7 years in prison Other sentences |
103 (20%) 96 (19%) 94 (18%) 88 (17%) 133 (26%) |
| Assault (10,920) |
¥100–200,000 fine ¥200–300,000 fine ¥300–500,000 fine 1–2 years at hard labor 6–12 months at hard labor 6–12 months in prison 1–2 years in prison Other sentences |
4130 (38%) 2084 (19%) 1161 (11%) 857 (8%) 571 (5%) 541 (5%) 512 (5%) 1064 (9%) |
| Drug offenses (10,766) |
1–2 years at hard labor 1–2 years in prison 2–3 years in prison Other sentences |
3,894 (36%) 3,490 (32%) 1,791 (17%) 1591 (15%) |
See: Criminal justice system of Japan
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In comparison to other countries in the developed world, Japan has a unique prosecutorial system. Ninety-nine percent of criminal defendants are convicted in Japan, and almost all are convicted following their own confession. Prosecutors tend to bring charges only when they have a signed confession from the accused, and such confessions often occur after long questioning by police. Although defendants have a right to counsel, it is generally not possible for them to obtain counsel between their arrest and indictment. This makes it difficult to judge the true extent of criminal activity in Japan, since many possible criminals refuse to confess and are thus never indicted.
Japan has a death penalty that can be invoked by the Minister of Justice for murder, arson, and crimes against humanity. The death penalty's constitutionality has been challenged by some advocacy groups in Japan but continues to be upheld by the Supreme Court. There are five other basic forms of criminal punishment in Japan: imprisonment at hard labor, imprisonment, fine, detention (less than 30 days), and minor fine (less than ¥10,000). Japan has been criticized for giving lenient punishments for some crimes, most notably rape (which carries a typical sentence of 2–5 years in prison, and a theoretical maximum of fifteen).
Note: The penalties in the Criminal Law were revised and reinforced in 2004. Therefore, the lower limit of the penalty of rape is now three years in prison, with a theoretical maximum of twenty.
[edit] Intellectual property
See: Japanese copyright law, Japanese patent law, and Japanese trademark law
[edit] Family law
See: Family law in Japan
[edit] Employment law
[edit] Law enforcement
The main law enforcement agency in Japan is the National Police Agency (警察庁 Keisatsuchō), which reports to the prime minister. Most day-to-day policing is carried out by prefectural police, which report to prefectural governors. Administrative law enforcement duties are carried out by inspection departments of the various cabinet ministries.
[edit] Legal professions
Japan recognizes a number of legal professions. While Japan is often said to have dramatically fewer lawyers than other countries such as the United States, the total proportion of legal specialists in both countries is about the same. This is due to the fact that Japanese law are based on Continental system and very small number of lawyer (advocating jurists) are complemented by large number of civil law notary and scrivener. The Japanese government has also been taking steps in recent years to increase the number of legal professionals nationwide.
The major professions, each of which has a separate qualification process, include:
- Attorney at law (弁護士 bengoshi?)
- Attorney at foreign law (外国法事務弁護士 gaikokuhō jimu bengoshi?, or "gaiben")
- Judicial scrivener (司法書士 shihō shoshi?)
- Administrative scrivener (行政書士 gyōsei shoshi?)
- Certified public accountant (公認会計士 kōnin kaikeishi?)
- Certified tax accountant (税理士 zeirishi?)
- Patent attorney (弁理士 benrishi?)
- Certified social insurance and labor consultant (社会保険労務士 shakai hoken rōmushi?)
- Maritime procedure commission agent (海事代理士 kaiji dairishi?)
- Notary public (公証人 kōshōnin?)
In-house legal advisors at major corporations are almost entirely unregulated, although there has been a trend in the past decade towards attorneys moving in-house.
[edit] Courts and procedure
Japan's court system is divided into four basic tiers, 438 Summary Courts, one District Court in each prefecture, nine High Courts and the Supreme Court. There is also one Family Court tied to each District Court.
[edit] Further reading
- Port and McAlinn, Comparative Law: Law and the Legal Process in Japan (Carolina Academic Press, 2003), ISBN 0-89089-464-7
- Milhaupt et al., Japanese Law in Context: Readings in Society, the Economy, and Politics (Harvard, 2001), ISBN 0-674-00519-8
- Oda, Japanese Law (Oxford, 2001), ISBN 0-19-924810-9
- Ramseyer and Nakazato, Japanese Law: An Economic Approach (Chicago, 2000), ISBN 0-226-70385-1
- Oda, Basic Japanese Laws (Oxford, 1997), ISBN 0-19-825686-8
- Haley, Authority Without Power: Law and the Japanese Paradox (Oxford, 1994), ISBN 0-19-509257-0
[edit] See also
[edit] Specific laws
- Meiji Constitution (superseded)
- Local Autonomy Law
- Peace Preservation Law (superseded)
- Railway Construction Act
- Railway Nationalization Act
- [New (2006) Corporations Law]http://www.japancompany.info/law/contents.htm]
[edit] Case law
- International Family Law
- Sweden v. Yamaguchi (Lagerfeld v. Yamaguchi)
- English summaries of important family law related cases
[edit] External links
- Japanese Wikipedia article on "List of Japanese laws" (contains links to many key Japanese laws)
- Links on Japanese law
- Supreme Court of Japan
- Summaries of major court cases
- National Police Agency
- Japanese Family Laws in English and Japanese
- The Reluctant Japanese Litigant: A new assessment, discussion paper by Masayuki Yoshida in the electronic journal of contemporary japanese studies, 13 October 2003.
- Translations of Japanese laws and regulations by the Cabinet Secretariat
- The Australian Network for Japanese Law (ANJeL)
- Make Japanese Law Transparent Projects
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