Strasbourg, 17 May 2002
CCJE (2002) 31
Consultative Council of European Judges (CCJE)
Questionnaire on the conduct, ethics and responsibility of judges: Comments of the Supreme Court of Japan
Questionnaire on the conduct, ethics and responsibility of judges
1. In addition to the Constitution (Article 76, Paragraph 3: “All judges shall be independent in the exercise of their conscience and shall be bound only by this Constitution and the laws.”), judges are bound by such statutory obligations as (1) the obligation of devotion to duty (Court Organization Law, Article 52, Items (2), (3), etc.); (2) the obligation of secrecy (Court Organization Law, Article 75, Paragraph 2; Public Service Disciplines, Article 4; etc.); (3) prohibition of active engagement in political movements (Court Organization Law, Article 52, Item 1); and (4) prohibition of misconduct seriously affecting the integrity of judges. (Court Organization Law, Article 49; Law for Impeachment of Judges, Article 2; etc.).
2. Although there is no independent code of conduct for judges, a certain code of conduct is stipulated in the Court Organization Law, Law for Impeachment of Judges, Public Service Disciplines, etc. These laws have been established and promulgated in accordance with the legislative procedures of Japan. If a judge violates this code of conduct, depending on the content, he or she can be subject to disciplinary punishment or removal by the court of impeachment.
3. As mentioned above, a judge must devote himself or herself to duty. Therefore it is prohibited for a judge to become a member of the Diet or an assembly of a local public entity, to hold another salaried position without obtaining the permission of the Supreme Court, or to carry on any commercial business or a business which aims at pecuniary gain (Court Organization Law, Article 52). Permission to hold another salaried position is granted only if it is recognized that the work will not violate the spirit of the Court Organization Law (without raising any doubts about the fairness of court duty), as in the case where the duties of the judge should not be obstructed.
4. Since judges, presiding judicial power, are independent in the exercise of their conscience and bound only by the Constitution and the laws (Constitution, Article 76, Paragraph 3), they must take an impartial and fair standpoint. To ensure it in judges' handling individual cases, the system of exclusion and challenge of judges is stipulated (Code of Civil Procedure, Article 23-27, Code of Criminal Procedure, Article 20-26, etc.). (Exclusion means that a judge naturally shall be excluded from the exercise of his or her functions due to statutory reasons, such as that a judge is a relative of a party of the case to handle. Challenge means that a judge shall lose the authority to exercise his or her duty by a petition from a party of the case when there are circumstances regarding the judge which would obstruct the impartiality of the judge's decision.)
Besides, in order to maintain public trust in the judiciary, it is important that a judge is impartial and fair, not only in the actual exercise of his / her duty in handling a case, but also in the externals. Therefore, as described above in 1, a judge must not engage actively in political movements, as stipulated in Article 52, Paragraph 1 of Court Organization Law. " Active engagement in political movements " here means "active involvement in continued, organized or systematic political movements, which would obstruct impartiality and fairness of a judge " and " when the validity of the particular activity is judged, not only objective circumstances such as the contents of the activity, the background or the place of the activity etc. but also subjective situations such as an intention of the judge engaging in the activity etc. shall be taken into consideration". (Supreme Court ruling of December 1, 1998)
5. Even if judges, who are public servants, exert damage on another person in the performance of duty, individual judges do not incur any civil liability in relation to the injured party (Supreme Court ruling of April 19, 1955; Minshu Vol. 9, No. 5, p. 534). If a judge commits a criminal act in the performance of duty, it will be judged through criminal court whether he or she has criminal liability, and may receive punishment.
6. When a judge has swerved from his or her duty, neglected it, or degraded himself or herself, that judge shall be subjected to disciplinary punishment by decisions (Court Organization Law, Article 49). The procedures in such a case are stipulated in the Law on Disciplinary Actions against Judges. The Supreme Court shall have jurisdiction in the case of a judge of the Supreme Court or a High Court, and a High Court shall have jurisdiction in the case of a judge of a District Court, Family Court, or Summary Court (Article 3 of said law). Punishment can be a caution or a fine of less than \10,000 (Article 2 of said law).
Also, if a judge commits conduct in grave contraventions or neglect of official duties or other misconducts seriously affecting the integrity of a judge, the judge shall be removed from his or her position. (Law for Impeachment of Judges, Article 2). The Court of Impeachment shall consist of 14 Diet members, 7 elected from the House of Representatives and 7 from the House of Councillors (Constitution, Article 64; Diet Law, Article 125, Paragraph 1; Law for Impeachment of Judges, Article 16, Paragraph 1). If the Court of Impeachment passes a verdict enabling dismissal, the judge in question naturally shall lose his or her position (Article 37 of said law).