The purpose of civil law is to resolve non-criminal disputes. These disagreements may occur over the meaning of contracts, divorce, child custody, property ownership, either personal, or property damage. Civil courts are a place where decisions can be made to solve problems peacefully. The goal of a civil court is to provide legal remedies that ultimately solve problems. Civil law can be based on state or federal statute or a ruling by the court. In Japan, the different types of civil cases are civil litigation cases, civil conciliation cases, civil execution cases, and bankruptcy cases (Judicial Reform Council, 1999).
The Japanese culture view courts as a last resort. They look down on legal contracts and formal written agreements. The Japanese prefer to settle disagreements privately and avoid public embarrassment. Each party must work out disputes between themselves. In accidents, arbitrators are used to determine fault and declare what should be done to settle the claim. Compared to the United States, the number of lawyers in Japan is relatively small. However, in 2000 Japan’s attitude toward civil lawsuits began to change.
This came about when employees began demanding compensation and rewards for work they had done for their companies. These companies looked to their competitors in other countries to seek answers to these problems. Japanese companies then copied the designs of these other companies in hopes of preventing their employees from filing suits. Many of these cases settle in American courts. Awards in Japanese courts are generally smaller than in the United States. Japan’s civil courts are fairly uniform and predictable, so parties are more willing to accept a deal and avoid the courtroom (Facts & Details, 2010).
According to CRNJapan (2009) the core of Japanese statutory law includes the so-called “Six Codes” (Â ropp). The six codes consist of: 1.The Civil Code (Â Minp, 1896) 2.The Code of Civil Procedure (Minji-sosh, 1996) 3.The Penal Code (Â Keih, 1907) 4.The Commercial Code (Â Shh, 1899) 5.The Code of Criminal Procedure (Â Keiji-sosh-h, 1948) 6.The Constitution of Japan (Nippon-koku-kenp, 1946)
According to OKUYAMA, SATO, and KASPER (1997), in June 1996, a legislation to reform the civil procedure in Japan passed the Diet and became law. The reform was the first comprehensive change in the civil procedure since 1926 and will involve extensive amendments to the entire Code and related laws. The reform took effect January 1, 1998. The first Code of Civil Procedure was promulgated as part of an intensive effort to build a modern Japan. The Code was modeled after the German Code, which was enacted only 13 years earlier in 1977. Since then two important reforms occurred, both influenced by the conclusion of a worldwide conflict.
One took place in 1926, as the result of an effort by the Japanese Government to follow the lead set by a post World War I Austria in adopting a new Code of Civil Procedure. The other reform occurred after World War II under the occupation of the Allied Forces. The first reform was comprehensive and covered almost all aspects of the Code. Although the second added some elements of American jurisprudence and placed an emphasis on the adversarial system, the basic approach to the Code that had been taken in the 1926 reform remained unchanged.
It is normally true that, “the customary unwillingness to file a lawsuit and to option to a lawyer continues strong, and most proceedings are still insignificant when considered by American standards” the proportion is quite astounding. For instance, it has been reckoned that the, “number of civil suits per capita in Japanese courts is between one-tenth and one-twentieth of the number in common-law countries.” Not only is it very low but as industrial capitalism booms, the rate of litigation have been dropping: litigation “has been less frequent in absolute numbers in the postwar years than the period from 1890 to the outbreak of the Sino-Japanese War in 1937.” An index of the low rate of litigation, linked as both cause and effect, is the scarcity of lawyers and judges in Japan.
For instance, in 1977 the ratio of lawyers to the general population in Japan was 10% of that in the United States. Almost all of these were concentrated in Tokyo and Osaka. If society compares a supposedly less litigious society to America, the findings would show that “with less than two-thirds of Japan's population, Germany has nearly six times as many judges as Japan.”
This highlights the counter-intuitive tendency for the number of legal professionals to be dropping, rather than rising. The world is told that, “Japan has fewer lawyers and judges per capita today than it did in the mid-1920s.” The number of judges has remained almost constant since 1890, while the population has almost tripled. “Today there is approximately one judge for every 60,000 persons in Japan as compared to one judge for every 22,000 persons in 1890.”
This is not for want of willing aspirants to the legal profession. Whereas in 1975 in America 74% passed their bar examination, in Japan it was only 1.7%. The Japanese may well share the view of Haley in relation to America that 'by increasing the number of judges to reduce our court delays, for instance, we may simply spur more litigation and greater social disintegration (MacFarlane A, 1995).
The Advantages and Disadvantages of the System. Civil law relies on legislation as the source of law (New World Encyclopedia, 2008). Regularly contrasted with civil law, common law is the most popular system of law in the world (Academic dictionaries and Encyclopedias, 2008). When a law system is the most used legal system in the world, it is certain to have advantages, but it will have some disadvantages. One advantage of the civil law system is that it remains formal within the judicial system.
The civil law system abides by established codes and guidelines. This means the outcomes of most cases are predominantly predictable. This leaves very little room for defendants to claim discrimination if they are receiving the same outcomes as every other case with similar circumstances. Another benefit is that cases take less time, which helps to prevent lengthy trials and back logging of the court system. One of the biggest problems plaguing court systems is the amount of cases overwhelming the system.
A high number of cases added to lengthy trials are additional setbacks to the judicial system. In addition juries can’t give inappropriate weight to an unreliable source nor can they misuse facts. Taken from the German civil code; Japan continues to apply the civil law system as it is the most organized legal system. Although the civil system is trusted as the most organized and just judicial system in Japan, it does have a few disadvantages. With civil law, the rules of evidence are less stringent. Less stringent laws offer a disadvantage to the civil law system because this can leave room for much debate. When outcomes change and there is no consistency more defendants claim injustice.
Another concern viewed as a disadvantage of the civil law code is the lack of jury trials. Allowing one’s peers to assist in democracy has value. It prevents a judge from using their personal discretion and burdening the courts with their personal agendas. Not possessing the ability to show discretion is some cases with extenuating circumstances is another flaw. Every case isn’t black or white. Certain details in a case can make all the difference. The lack of considering special circumstances is a disadvantage to justice.
Just as common law and religious law have their advantages and disadvantages, civil law is no exception. Often the advantages and disadvantages come down to opinion. The disadvantages of the civil law code in Japan as in other countries are necessary and justifiable. This is why the civil code is so widely used throughout the world. The criminal justice operation of Japan’s Civil System was based on several divisions, which was police, government prosecutor offices, courts, and correctional organization. In 1880 the justice system underwent a swift alteration of the Penal Code and Code of Criminal Instruction that originated from French models. Offenses were detailed and spelled out according to the specific crimes. The codes were equally administered, which all citizens were treated the same.
Punishment was prohibited under the ex post facto law. One’s guilt was either held as personal vendetta, collective guilt, or guilt by association, which was abolished. In 1907 the Penal Code was revised to replicate the increasing control that the German law had in Japan as well as the classification of offenses from the French practice, which was done away with. Boundaries existed, the old code allows judicial discretion and the new code allows the judge to operate under a wide range of factors when passing down sentencing. After the World War II, “occupation authorities initiated reform of the constitution and laws in general except for omitting offenses relating to war, the imperial family, and adultery” (1994).
In 1947 the Penal Code was once again revised but still remains practically the same as the 1907 code. “The criminal procedure code was substantially revised to incorporate rules guaranteeing the rights of the accused. The system became almost completely accusatorial, and the judge still able to question witnesses, decided a case on evidence presented by both sides” (Japan, 1994). Laws that assure against the wrongly accused, juveniles, prisons, probation, and minor offenses was passed after the postwar years to complement criminal justice administration. The revising of the Constitution of Japan in 1947 brought about radical change of trial system of Japan as well as civil trials.
Under the old Constitution disputes between individuals were handled in courts. “Cases in which damages were incurred by individuals through unlawful administrative dispositions, such as wrongful collection of taxes and unlawful action of the police, only quasi-judicial relief was available through an administrative agency called the "Administrative Court" (Supreme Court of Japan, 2006). The old Constitution would not allow such damage to be brought to the judicial courts. Although the old Constitution restricted certain rights the new Constitution affirm that all people should be treated equally.
That people should not be prevented from enjoying the fundamental rights. “There were some problems in the construction of this Act, it was repealed and the Administrative Case Litigation Act was enacted in 1962. The act was revised in 2004 to reinforce the checking function of the justice system vis-a-vis the administration” (Supreme Court of Japan, 2006). Several procedures exist within the civil process. The first is the jurisdiction, the place that the case should be held and the subject which the matter should be provided in Court Organization Act, Code, or other applicable laws.
The court has to make a decision for a single judge in summary court, district court, or panel consisting of three judges presiding over the case. Then there is the pre-action proceeding for collection of evidence. The plaintiff has to file the complaint then the complaint is formatted. Once the complaint is served, the defendant has to file an answer. After that there is the oral argument, then arranging issues and evidence to scheduling conference, to examination of witnesses and parties, examination of other evidence, conclusion of oral argument, rendition of judgment, and finally resolution. Conclusion
The purpose of civil law is to resolve non-criminal disputes. The goal of a civil court is to provide legal remedies that ultimately solve problems. The Japanese culture view courts as a last resort. They Japanese prefer to settle disagreements privately and avoid public embarrassment.
However, in 2000 Japan’s attitude toward civil lawsuits began to change. Awards in Japanese courts are generally smaller than in the United States. Japan’s civil courts are fairly uniform and predictable, so parties are more willing to accept a deal and avoid the courtroom. The core of Japanese statutory law includes six codes consisting of the Civil Code, the Code of Civil Procedure, the Penal Code, the Commercial Code, the Code of Criminal Procedure, and the Constitution of Japan. In June 1996, a legislation to reform the civil procedure in Japan passed and became law.
This reform was the first comprehensive change in Japan’s civil procedure since 1926 and involved extensive amendments to the entire Code and related laws. Since this reform, the number of litigations in Japan has continued to decline. The total number of lawyers and judges in Japan is relatively small compared to other countries with comparable populations. One advantage of the civil law system is that it remains formal within the judicial system. The civil law system abides by established codes and guidelines. This leaves very little room for defendants to claim discrimination if they are receiving the same outcomes as every other case with similar circumstances.
Another benefit is that civil cases take less time. But, civil law systems are not without disadvantages. Less stringent laws offer a disadvantage to the civil law system because this can leave room for much debate. Another concern viewed as a disadvantage of the civil law code is the lack of jury trials. The criminal justice operation of Japan’s Civil System was based on several divisions, which was police, government prosecutor offices, courts, and correctional organization. Offenses are detailed and spelled out according to the specific crimes. The criminal codes are equally administered, which meant that all citizens are treated the same. Boundaries did exist, but the old code allowed judicial discretion and the new code allows the judge to operate under a wide range of factors when passing down sentencing. In 1947 the Penal Code was once again revised but still remains practically the same as the 1907 code.
The revising of the Constitution of Japan in 1947 brought about radical change of trial system as well as in civil trials. Although the old Constitution restricted certain rights, the new Constitution affirms that all people should be treated equally. It declared that people should not be prevented from enjoying the fundamental rights. While Japan stands firm that civil law is their system of choice, officials continue to recognize the rights of both the accused and the victims to ensure that all citizens are treated equal within Japan’s justice system.
References: Facts and Details (2010). Legal System in Japan. Information retrieved on July 30, 2010 From http://factsanddetails.com/japan.php?itemid=807&catid=22&subcatid=147#14 CRNJapan. (2009). Japan Law. Retrieved from http://www.crnjapan.com/japan-law/japan-law.html MacFarlane, A. (1995). Continuity and Change 10 (3), 1995, 369-390. 1995 Cambridge University Press. Law and custom in Japan: some comparative reflections, (), Retrieved from http://www.alanmacfarlane.com/TEXTS/law%26custom.pdf Academic dictionaries and encyclopedias. (2008). Civil Law . Retrieved from http://en.academic.ru/dic.nsf/enwiki/524945 New World Encyclopedia. (2008). CIvil Law System. Retrieved from http://www.newworldencyclopedia.org/entry/Civil_law OKUYAMA, Dr. S., SATO, Izumi. & KASPER, A. J. (1997, October). The New Code of Civil Procedure in Japan. , (), 1-6.
The Secretariat of the Judicial Reform Council (1999). The Japanese Judicial System. Information retrieved on July 30, 2010 from http://www.kantei.go.jp/foreign/judiciary/0620system.html (1994). Japan: The criminal justice system. Retrieved on July 31, 2010 from http://www.countrydata.com/cgi-bin/query/r-7338.html (2006). Supreme court of Japan. Retrieved on July 31, 2010 from http://www.courts.go.jp/english/proceedings/civil_suit.html#top