The Japanese Legal System and Rule of Law: An In-Depth Analysis

This report provides a comprehensive overview of the Japanese legal system, examining its key characteristics, including the parliamentary system, sources of law, and court structure. It delves into the roles of the National Diet, the legislative body, and the various courts, such as the Supreme Court, High Courts, District Courts, Family Courts, and Summary Courts. The report also discusses the concept of mediation within the Japanese legal framework. A significant portion of the report focuses on the rule of law in Japan, analyzing its strengths and weaknesses, and the historical and cultural factors that influence its application. The report concludes with a discussion on the need for legal reform to align with global standards, particularly to foster business development and protect new business ventures. The analysis includes references to various academic sources to support the arguments and findings.

JAPANESE LEGAL SYSTEM
AND THE RULE OF LAW
NAME OF THE STUDENT
NAME OF THE UNIVERSITY
AUTHOR NOTE

INTRODUCTION
• Every country has legal structure different from that of Australia. The parliamentary
system, the sources of law and the court structure also varies with countries.
• The concept of rule of law enunciates that everyone is equal before law. But all countries
may not have concept of it. It changes with countries too (Gillespie 2017).
• This assessment throws light mainly on the legal system of Japan and also analyzes the
strength of rule of law in it.
• In the following part of the assignment, Japan’s legal system is thoroughly discussed. With
the help of this assessment it can be known whether it is viable to do business in Japan

CHARACTERISTICS OF THE JAPANESE
LEGAL SYSTEM
• The politics of Japan are carried in a structure of multi- party bicameral parliamentary representative democratic
constitutional monarchy where the ceremonial head is the Emperor and the Prime Minister is the head of the
government and the head of the cabinet, which controls the executive system of the country (Haddad, 2016).
• The legislative power lies in the National Diet, the formal name of the Parliament of the country. It comprises of the
House of Representatives and House of Councillors. The members of both the Houses are elected by the parallel
voting system. Besides passing legislations, it also selects the Prime Minister.
• The Parliament was introduced for the first time as the Imperial Diet in 1889 after the adoption of Meiji Constitution
(Itoh, 2016).
• The Parliament got its present form in 1947after adopting of the constitution post war. Diet is the highest organ of the
state power and the only law making power of the State. It is located in the National Diet Building in Nagatacho,
Chiyoda, Tokyo (Itoh & Beer, 2017).

PARLIAMENT IN JAPAN
• Previously, the Parliament chose its members from the Imperial family, other nobles, people who paid
high taxes and others appointed by the Emperor. The Emperor was at the supreme position in the
Parliament.
• However, in the new form of Diet, the Emperor lost his powers and became just a symbol, making Diet
the highest organ of the country (Jayasuriya, 2017).
• The powers of Diet, conjointly enjoyed and exercised by the two houses, comprises of enacting the laws,
taking decisions about the budget and other matters like finances, decisions regarding approval of the
conclusion of any international treaties and the designation of the Prime Minister. The House of the
Representative has 475 members, of which 295 members are chosen from single-seat districts and 180
from multi-seat districts (Kingston, 2019).

SOURCES OF LAW IN JAPAN
• The National Diet is the sole law making organ of the State. Japan is basically a civil
law country.
• Its law is based on codified laws following 19th century model of European legal system,
influenced by the legal structures of Germany and France mainly. Unlike the Anglo-
American system, statute law has the main role in the Japanese system. (Oppler, 2015).
• The main statutes which form the legal framework are called as codes. There are mainly
six Codes which are the Constitution, the Civil Code, the Criminal Code, the
Commercial Code, the Code of Criminal Procedure and the Code of Civil Procedure.

COURT STRUCTURE IN JAPAN
• The fundamental principle of judicial system of Japan is that all the judges
are independent to each other in the exercise of the conscience and the
Constitution and the Laws only control them.
• The judicial system was restricted in the Meiji Constitution than in the
present scenario (Tsang, 2019). The Japanese court structure is mainly
consist of five types of courts; the Supreme Court, the High Courts, the
District Courts, Family Courts and Summary Courts

COURT STRUCTURE IN JAPAN
• The District Courts are those that deal with matters pertaining to general jurisdiction only.
• District courts handle civil, administrative and criminal law cases in first instance.
• The Family Courts in Japan on the other hand are very specialized courts that are concerned with juvenile
delinquency cases and familial matters only (Vanoverbeke, 2015).
• The family courts as well as the branch offices of such family courts are set up in the exact same places
where the main office and branch offices of the district courts of Japan happen to be located.
• Additionally there are many as seventy seven offices of the Japanese family courts that are set up in
localized spaces and where cases are handled or overseen by an individual judge (Oppler, 2015).

COURT STRUCTURE IN JAPAN
• The Summary courts are the courts of the lowest order. They mainly deal with civil cases of values not more than 900,000 yen.
• The cases in summary courts are those that are handled by single summary court judges.
• Litigants in such summary courts do not have to necessarily be handled by legal professionals who are very qualified, unless of
course the litigant is a person who has committed a criminal offense.
• Representation on the part of non-lawyers is something that was strictly prohibited in the Japanese summary courts until only
very recently (Jayasuriya, 2017).

MEDIATION IN JAPAN
• Summary courts, family courts and district courts in Japan are not only
responsible for adjudicating cases but also engage in the provision of legal
mediation services (Gillespie, 2017).
• The mediation procedure is one that involves the role of a mediation committee
that comprises one or two judges and several mediators that are recruited from
among the citizen base of Japan and who usually have profound knowledge and
the expertise that is required in order to carry out the process of mediation
between two or more parties

RULE OF LAW IN JAPAN
• Japan is a country where rule of law is seen to play quite a limited role.
• Apart from the fact that the courts in the country are hardly ever utilized for
the purpose of resolving private disputes, the judiciary in Japan is also
reluctant for the most part to go ahead and exercise the powers that it has
been constitutionally vested with in order to revoke decisions that are taken
on the part of other varied branches of the Japanese government (Haddad,
2016).

RULE OF LAW IN JAPAN
• The statutes that are enacted on the part of the National Diet are seldom ever
regarded as unconstitutional and the legal cases where decisions are taken by
the executive branches of the government are rarely ever nullified.
• Decisions that are politically important are more often than not entirely
exempted from the scrutiny of the judiciary as a result of which the Japanese
judiciary has been regarded as non-existent for the most part of the country’s
history (Oppler, 2015).

RULE OF LAW IN JAPAN
• However, globalization of Japanese society and economy has weakened greatly the influence of
cultural traditions on the workings of the judiciary (Kingston, 2019).
• Accelerating de-regulation has made management of disputes on the part of the bureaucracy quite
hard to maintain and there is an increasing pressure on the country from the rest of the world to
make the legal system of Japan one that meets international standards.
• Certain Japanese corporations and the main peak associations of such corporations are in fact
demanding the birth of a legal system that is more usable, for protecting as well as developing new
business and for acquiring an edge over competitors who are not as legally sophisticated as they are.
• Citizens groups in Japan have been advocating for such a change too (Tsang, 2019).