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Overview of the Judicial System in Japan
JUDICIAL POWER IN THE STATE
The Constitution (promulgated on November 3, 1946, and enforced on May 3, 1947) provides for a democratic, fundamental separation of state powers. To be more precise, legislative power is vested in the Diet; executive power is vested in the Cabinet with the Prime Minister at its head, who is designated from among the members of the Diet by a resolution of the Diet (and in the exercise of this power, the Cabinet is collectively responsible to the Diet); and all judicial power is vested in the Supreme Court and in such lower courts as high courts, district courts, family courts, and summary courts. The courts are the final adjudicators of all legal disputes, including those between citizens and the State arising out of administrative actions.
SUPREME COURT
Judicial Function
The Supreme Court is the highest court in the nation and is composed of the Chief Justice and fourteen Justices.
The Supreme Court exercises appellate jurisdiction of appeals to the court of the last resort (hereinafter referred to as "jokoku appeal"), and appeals from/against a ruling (hereinafter referred to as "kokoku appeal") as provided for specifically in the codes of procedure. In addition, it has initial and final jurisdiction in the proceedings involving the impeachment of commissioners of the National Personnel Authority.
A jokoku appeal to the Supreme Court is permissible in the following instances: (1) an appeal lodged against a judgment rendered in the first or second instance by a high court; (2) a direct appeal sought against a judgment rendered in the first instance by a district court or a family court, or a judgment in criminal cases rendered by a summary court as a court of first instance; (3) an appeal filed with a high court and transferred to the Supreme Court for a special reason; (4) a so-called special appeal to the court of the last resort made against a judgment in a civil case rendered in a high court as the court of third instance; and (5) an extraordinary appeal to the court of the last resort lodged by the Prosecutor-General against an unappealable judgment of a criminal case.
A kokoku appeal to the Supreme Court is permissible in the following instances: (1) an appeal filed against a ruling in a civil case and a domestic relations case either on the grounds of violation of the Constitution or with the permission of the high court that shall be given in a case that the court deems to involve an important issue concerning the interpretation of laws and regulations, and (2) a special appeal filed against a ruling in a criminal case for which no ordinary appeal is permitted in the Code of Criminal Procedure and an appeal filed against a ruling of an intermediate appellate court in a juvenile case, on the grounds of violation of the Constitution or for the reason of a conflict with judicial precedents.
In civil and administrative cases, a jokoku appeal to the Supreme Court may be lodged only on the grounds of violation of the Constitution and grave contravention of provisions regarding the proceedings of the lower courts, that are listed in the Code of Civil Procedure as the absolute grounds for the jokoku appeal. The Supreme Court, however, may accept a case that it deems to involve an important issue concerning the interpretation of laws and regulations, as the court of jokoku instance upon a petition to do so. In criminal cases, the grounds for a jokoku appeal are limited to those involving a possible violation of the Constitution, errors in the interpretation of the Constitution or conflicts with the precedents of the Supreme Court or conflicts with those of the high courts in the absence of Supreme Court precedents. The Supreme Court, however, may accept a case it deems to involve an important issue concerning the interpretation of laws and regulations, as the court of jokoku instance, upon a petition to do so.
Oral arguments and adjudications in the Supreme Court are made either by the Grand Bench composed of all fifteen Justices sitting together or by one of the three Petty Benches, each composed of five Justices.
Nine or more Justices in the Grand Bench and three or more Justices in each Petty Bench shall constitute a quorum to hear and determine cases.
The proceedings in the Supreme Court commence with the filing of an appeal document written by a party dissatisfied with the judgment of a lower court, generally of a high court. Since the Supreme Court primarily determines the question of law, it renders decisions, as a rule, after an examination of documents alone (appellate briefs and records of the lower courts).
Where an appeal is not sustainable, the Supreme Court may dismiss the appeal without holding oral arguments. If the Supreme Court finds it sustainable, however, a judgment will be rendered after the oral argument is heard.
Every case on appeal is first assigned to one of the three Petty Benches. If a case proves to involve a constitutional issue, namely, an issue of the constitutionality of any law, order, rule, or disposition, except when there is a precedent upon the same question, the Grand Bench inquires and adjudicates on it.
To assist the Justices of the Supreme Court in their judicial work, there are a
certain number of Judicial Research Officials in the Supreme Court.
Judicial Administration
In addition to the primary function of exercising judicial power, the Supreme Court is vested with rule-making power and the highest authority of judicial administration. In its conduct of these administrative affairs, the Supreme Court acts upon the resolutions of the Judicial Conference, which consists of the 15 Justices and is presided over by the Chief Justice.
The Judicial Conference is held for consideration and determination of matters of rule-making and judicial administration.
With the rule-making power, the Supreme Court may establish the rules of judicial procedure, and of matters relating to attorneys, the internal discipline of the courts, and the administration of judicial affairs.
In establishing rules on important matters, the Supreme Court, to establish them with deliberation, requests the Advisory Committee on Rule-Making, which is composed of judges, public prosecutors, attorneys, officers from related institutions, and scholars, to inquire of the necessary matters to establish rules. Then the Judicial Conference deliberates and approves the proposed rules for adoption formulated on the basis of the Committee's report.
The designation of the Chief Justice and appointment of other Justices and judges of lower courts are within the purview of the Cabinet. However, the nomination of candidates of lower court judges from among whom the Cabinet appoints, including the Presidents of the high courts, and the assignment of judges to a specific court are reserved for the Supreme Court, which exercises the authority through the resolutions of the Judicial Conference, provided that, as a rule, the nomination of candidates of lower courts needs advice of the Advisory Committee for the Nomination of Inferior Court Judges. In addition, such matters as the appointment and removal of court officials other than judges are within the purview of the judicial administration of the Supreme Court.
As for the budget of the courts, the Supreme Court, upon the resolution of the Judicial Conference, submits annual estimates of revenues and expenditures directly to the Cabinet. If the Cabinet reduces the court's estimated expenditures, the Supreme Court may request the Cabinet to raise reduced amounts. In this case, the Cabinet shall attach the details of the reduction to the budget draft and present it to the Diet clearly stating the necessary fiscal resources so that the Diet can amend the figure for its deliberation.
In order to carry out these administrative affairs, the Supreme Court has the General Secretariat as its internal organ for judicial administration, the Legal Training and Research Institute, the Training and Research Institute for Court Officials, and the Supreme Court Library. The key staff of the General Secretariat may be selected from among the judges of lower courts with their consent.
Thus, the Supreme Court administers the whole judicial system independently, without any intervention by the executive and legislative branches.
HIGH COURTS
High courts are located in eight major cities in Japan: Tokyo, Osaka, Nagoya,
Hiroshima, Fukuoka, Sendai, Sapporo, and Takamatsu. Each high court has its own territorial jurisdiction over one of eight parts of Japan. Some high courts have different branches. There are six branches throughout Japan. In addition, in April 2005, the Intellectual Property High Court was newly established as a special branch of the Tokyo High Court, which handles only cases relating to intellectual property. Each high court consists of a President and other high court judges. High courts, except for the Intellectual Property High Court, have jurisdiction over appeals filed against judgments rendered by district courts in the first instance or family courts (hereinafter referred to as "koso appeals") and kokoku appeals, except kokoku appeals over which the Supreme Court has jurisdiction as provided specifically in the codes of procedure. However, while koso appeals in criminal cases originating in summary courts come directly to high courts, koso appeals in civil cases originating in summary courts are usually brought firstly to district courts and then jokoku appeals are lodged with high courts.
In addition, a high court has original jurisdiction over administrative cases on election, insurrection cases, etc. The Tokyo High Court also has exclusive original jurisdiction over cases to revoke decisions of such quasi-judicial agencies as the Fair Trade Commission.
The Intellectual Property High Court exclusively handles the cases relating to intellectual property as koso appeals from district courts in civil cases relating to patent rights and suits against appeal/trial decisions made by the Japan Patent Office.
Cases in a high court are heard by a three-judge panel in principle. In addition, insurrection cases, judges' disciplinary cases, and cases to revoke decisions of the Fair Trade Commission, and other cases are handled by a five-judge panel.
DISTRICT COURTS
There are 50 district courts in Japan which have territorial jurisdiction over their respective districts, the area of which is identical to that of each prefecture (except Hokkaido, which is divided into four districts). The district courts have 203 branches in total.
The district court is generally the court of the first instance, except for matters specifically coming under the exclusive original jurisdiction of other types of court. It also has appellate jurisdiction over koso appeals in civil cases lodged against judgments of summary courts.
In a district court, as a rule, cases are handled by a single judge, but a three-judge panel is required in the following instances:
(1) Cases in which a panel decides that "hearing and judgment (of this case) shall be made by a panel."
(2) Cases of crimes punishable by the death penalty or imprisonment with or without work for life or a minimum period of not less than one year. Exceptions, however, are provided for in the cases of robbery, quasi-robbery, attempts to commit these crimes, or habitual robbery and larceny with repeated conviction under the Act for Prevention and Disposition of Robbery, Larceny, etc.
(3) Koso appeals against judgments in civil cases rendered by summary courts and kokoku appeals against rulings and orders of summary courts in civil cases.
(4) Cases designated as a panel cases by laws other than the Court Organization Act which stipulates (1), (2) and (3).
FAMILY COURTS
Family courts and their branches are established at the same places where district courts and their branches are located. In addition, local offices of family courts are located at the sites of 77 summary courts.
The family court, established on January 1, 1949, under the concept of maintaining the welfare of families and seeking the sound upbringing of juveniles, is a court specialized in dealing comprehensively with domestic relations cases and juvenile delinquency cases. The family court has, in the first place, jurisdiction over all disputes and conflicts that take place within the family, as well as all related domestic affairs of legal significance. It conducts the conciliation proceedings and the determination proceedings. As a result of the enforcement of the Act for Proceedings on Personal Status on April 1, 2004, the family court started to handle litigation regarding relationships between spouses, parents and children, and so forth.
Typical examples of domestic relations cases are listed as follows: guardianship for adults, permission to adopt a minor, requesting the expense for bringing up a child, designation of the person who has parental authority and alteration thereof, partition of estate, marital relationship disputes, and divorce. Conciliation must first be sought for cases such as divorce, relationships between parents and children, and so forth, that are subject to the Act for Proceedings on Personal Status. If no agreement is reached, one of the parties may bring an action. This derives from the concept that it is suitable for a family dispute to be tried firstly for a settlement through proceedings closed to the public, taking reason and sentiment into consideration.
The family court also handles cases involving juvenile delinquents under 20 years of age who have committed a crime or are considered prone to commit crimes (14-19 years old) or who have violated penal provisions or are considered prone to violate them (under 14 years old). This derives from the concept that it is appropriate for protective and educational measures to be applied to juveniles under a non-public proceedings rather than for punishment to be imposed. Finally, the family court has jurisdiction over adults indicted for offenses that are detrimental to the welfare of juveniles.
Cases brought before the family court are handled by a single judge or a three-judge panel fully utilizing scientific reports prepared by family court probation officers, as well as diagnostic results of medical officers who are experts in psychiatry.
SUMMARY COURTS
There are 438 summary courts throughout the country.
The summary courts have the original jurisdiction over civil cases involving claims for amounts not exceeding 1,400,000 yen and criminal cases for offenses punishable by fines or lighter punishment and other offenses, such as habitual gambling and embezzlement.
The summary court cannot impose imprisonment or graver punishment as a general rule. However, it can impose imprisonment with work not exceeding three years with respect to cases of offenses specifically provided for by law. When the summary court deems it appropriate to impose a punishment exceeding the limit, it must transfer the case to the district court.
All cases in a summary court are handled by a single summary court judge.
JUSTICES OF THE SUPREME COURT
The Chief Justice is appointed by the Emperor as designated by the Cabinet. As the representative of the whole judiciary, the Chief Justice ranks on the same level as the Prime Minister, the representative of the Cabinet. Other Justices of the Supreme Court, whose ranks are as high as those of Ministers of the Cabinet, are appointed by the Cabinet, and then the appointment is attested by the Emperor.
Justices of the Supreme Court shall be appointed from among persons with a broad vision and extensive knowledge of law. At least ten Justices must be selected from among those who distinguish themselves as judges, public prosecutors, attorneys, and professors or assistant professors of legal science at universities; the rest do not need to be jurists.
The appointment of Justices of the Supreme Court is reviewed by the people at the first general election of members of the House of Representatives following their appointment. The review continues to be held every ten years at general elections.
A Justice will be dismissed if the majority of the voters favors his/her dismissal. So far, however, no Justice has ever been dismissed by the review.
Justices of the Supreme Court must retire at the age of 70.
JUDGES OF THE LOWER COURTS
Judges of the lower courts are categorized into presidents of high courts, judges, assistant judges, and summary court judges. They are all appointed by the Cabinet from a list of candidates prepared by the Supreme Court, while the appointment of the presidents of high courts is attested by the Emperor. As a rule, the nomination of lower court judges needs the advice of the Advisory Committee for the Nomination of Lower Court Judges. As of 2006, there were 1,597 judges, 915 assistant judges, and 806 summary court judges.
Assistant judges are appointed from among those who have passed the National Bar Examination, completed training at the Legal Training and Research Institute, and then passed the final qualifying examination. An assistant judge is allowed to exercise judicial power only as a member of a three-judge panel, and he/she is not qualified to preside over a single-judge court. However, at the present time, the law authorizes those who have had practical experience of more than five years as an assistant judge and who have been nominated by the Supreme Court to preside over a single-judge court.
In order to be appointed as a full-fledged judge, it is necessary for a candidate to have practical or academic experience of not less than ten years as an assistant judge, public prosecutor, attorney, or law professor.
As for summary court judges, while those who have practiced law for three years or more as assistant judges, public prosecutors, or attorneys may be appointed, people of ability other than qualified jurists who have long experience in judicial practice or the academic experience necessary for the professional duty of a summary court judge may also be appointed through selection by the Selection Committee for Judges of the Summary Court.
The term for which judges of lower courts hold office is limited to ten years, with eligibility for reappointment. Summary court judges must retire at the age of 70 and other judges at the age of 65.
The status of judges is duly guaranteed by the Constitution, which provides that judges shall not be removed except by public impeachment, which shall be conducted by an Impeachment Court composed of 14 members of the Diet, unless judicially declared mentally or physically incompetent to perform official duties. And any disciplinary measures against a judge who has neglected his/her duties or disgraced himself/herself by his/her conduct must be taken through a disciplinary judicial hearing conducted by a high court or the Supreme Court.
There is a system in which a part-time judicial officer (called Chotei-kan) handles civil or family affairs conciliation proceedings with the same level of competence as a judge. They are appointed from among attorneys who have practical experience of five or more years.
COURT OFFICIALS OTHER THAN JUDGES
Besides judges, there are officials, namely judicial research officials, court clerks, family court probation officers, court stenographers, court secretaries, and court enforcement officers working at the courts. As of 2006, the total number of these court officials is about 22,000, including approximately 9,000 court clerks, 1,600 family court probation officers, 300 court stenographers, and 9,400 court secretaries.
In order to train the above-mentioned officials and conduct research and training, the Research and Training Institute for Court Clerks and the Research and Training Institute for Family Court Probation Officers were integrated, following which in April 2004 the Training and Research Institute for Court Officials was newly established.
In brief, the duties and responsibilities of these officials are as follows:
Judicial Research Officials
The duty of judicial research officials is to conduct research necessary for adjudication of a case under the instruction of the Justices or judges in charge. They are recruited from among specialists in the fields of intellectual property and other specialties as well as from among jurists.
Court Clerks
Based on a high educational background in the field of law as a legal professional, court clerks are responsible for attending the proceedings and submitting a detailed record (duty of public certification of the court record), assisting judges in researching laws and regulations and judicial precedents, and other duties as prescribed by law in order to assure the due process. Recently, the responsibility of court clerks to make preparatory arrangements between dates of the court proceedings has come to be recognized as very important, and court clerks are taking an active part in administering litigation in cooperation with judges in order to realize proper and prompt justice.
Family Court Probation Officers
Family court probation officers conduct investigation into the fact and coordinate human relationship for the proper disposition of cases of domestic relations, personal affairs, and juvenile delinquency, and submit a report to the judge. They are specialists in the field of human sciences such as psychology, sociology, pedagogy, and social work and engaged in the scientific function of the family court.
Court Stenographers
Court stenographers are in charge of taking stenographic records of court proceedings and doing other related work.
Court Secretaries
Court secretaries are engaged in matters concerning judicial administration, and assist in work related to handling cases filed with the courts.
Court Enforcement Officers
Court enforcement officers execute civil judgments and serve some of the documents issued by the court.
PUBLIC PROSECUTORS AND ATTORNEYS
A public prosecutor is an official who institutes prosecution, requests to courts the proper application of the law, and supervises the execution of criminal judgment. A public prosecutor is under the general supervision and control of the Minister of Justice. However, the Minister may give directions only to the Prosecutor-General concerning investigation or disposition of each case. This is a safeguard to protect the fairness of the prosecution from political pressure. A public prosecutor is required to have the same qualifications for appointment as an assistant judge.
Attorneys participate in judicial proceedings as the representatives of parties in civil cases and as defense counsels in criminal cases. Once a person is admitted to the bar, he/she may conduct arguments before any court and be engaged in general practice of law, there being no distinction such as that between a barrister and a solicitor in the United Kingdom. In view of the nature of his/her business, the qualifications for attorneys are exactly the same as those for judges and public prosecutors. Every attorney has to belong to one of the local bar associations organized in each judicial district of the district court and at the same time to the Japan Federation of Bar Associations, which is composed of local bar associations and all individual attorneys.