Strasbourg, 7 May 2004
CCJE (2004) 28
Consultative Council of European Judges (CCJE)
Questionnaire on management of cases, judges’ role in the proceedings, and use of alternative dispute settlement methods: reply submitted by the delegation Japan
The court is making an effort to provide information to the public such as court guides, summaries of court procedures, information on judicial decisions, and statistical information on its homepage and in public relations magazines, which provides a means of easy access by citizens to the judiciary.
In order to lessen the burden on parties who file complaints in the summary court, which aims to simply and quickly resolve disputes concerning relatively small amounts of money or matters of relatively smaller importance, procedures exist under the Code of Civil Procedure (hereinafter referred to as “CCVP”) that allow for lawsuits to be filed orally; in terms of operation, there are templates for written complaints in each summary court. However, it is not known how many persons have used the procedures that allow for lawsuits to be filed orally.
The Civil Legal Aid Law was enacted and took effect on October 1, 2000, for the establishment of a basis for civil legal aid services.
This Law stipulates that the Minister of Justice may, upon application by a satisfying the following requirements, designate such person as a provider of the Legal Aid Service for Civil Cases on a nationwide basis. Such person shall have satisfactory knowledge, capability, and accounting basis to properly and reliably implement such service. Such person shall be a corporation which has been organized pursuant to Article 34 of the Civil Code, and whose structure of officers and employers is not considered to give any adverse effect on the fair implementation of such services ((a) related; Article 5, Paragraph 1 of the said law).
Furthermore, on the 18th day of the same month, under this provision, the Minister of Justice designated Japan Legal Aid Association as the entity to conduct the legal aid services mentioned above ((b) related).
The total expenditures by Japan Legal Aid Association for civil legal aid services in the 2001 fiscal year (from April 1, 2001, to March 31, 2002) were approximately 5.55 billion yen. Approximately 40% of these expenditures were covered by national subsidies (approximately 2.43 billion yen), and approximately 50% were covered by redemptions (approximately 2.71 billion yen).
Heretofore, in Japan, there has been no system for the winning party to recover lawyer fees from the losing party, but a bill is currently under deliberation in the Diet to create a system by which compensation for the advocates, such as lawyers, would be borne by the losing party in cases in which both parties have petitioned for such result.
The court does not yet have knowledge of all of the details but, as specified above, there has been no system for the bearing of lawyer fees by the losing party, so there has been no demand for a litigation expense insurance system, and such a system does not appear to be well developed.
In addition to judges, there are court clerks who conduct the affairs of judicial proceedings (Article 60, Court Organization Law). Court clerks are basically an independent notarial organ for record-keeping, to ensure the clarity and legality of court proceedings. Within court proceedings, this includes managing ancillary proceedings and actual proceedings, and the types of affairs assigned are as follows:
· Affairs related to CCVP
In order to achieve the proper and swift conduct of civil trials, with respect to the conduct of court administration, the court clerk performed work in support of the trial including (1) the investigation and supplementation of written complaints, (2) the holding of hearings on reference information with respect to the progress of litigation, such as the conduct of negotiations prior to filing a lawsuit, (3) communication and adjustments in regard to the progress of a case, (4) demands for preliminary documents prior to the deadline for the submission thereof and the securing of such documents, and (5) the securing of witness appearances. In light of these activities, at the time of amendment of CCVP in 1996, it was made clear in the text of the law that presiding judges can order court clerks to require the correction of written complaints (Article 56, Rules of Civil Procedure), conduct hearing of matters for reference before the initial date for oral argument (Article 61, Rules of Civil Procedure), and conduct explanations on an occasion other than date set for oral argument (Article 63, Rules of Civil Procedure).
Furthermore, court clerks were assigned authority by the judges, including the issue of demand for payment (Article 382, CCVP) and declarations of provisional execution with respect thereto (Article 391, CCVP), the disposition to fix amount of court costs (Article 71, CCVP), certification of the requirements for providing service by publication of notice (Article 110, CCVP), and proceedings of entrustment (Article 31, Rules of Civil Procedure), in addition to delivery and notice activities. Court clerks have previously performed all of these activities in assisting judges.
· Affairs related to the Law of Civil Execution
Court clerks were granted authority including provision of an enforcement statement (Article 26 and other articles, Law of Civil Execution), request for attachment registration (Article 48, Law of Civil Execution), public notices and demands (Article 49 and other articles, Law of Civil Execution), depositing the amount of the allotment etc (Article 91, Law of Civil Execution), notification of withdrawal of application for civil execution before court (Article 14, Rules of Civil Execution), and delivery of the payment or entrustment of the payment of deposited money (Article 61, Rules of Civil Execution).
Court clerks were granted authority including the commitment of the entry in the family register based on amendments to the Law for Determination of Family Affairs in 1980 (Article 15-2, Law for Determination of Family Affairs), and entrustment of the registration of notices and cancellations based on amendments to the Law concerning the Registration of Immovable in 1993 (Article 34, Article 145, Law concerning the Registration of Immovable).
2. Amendments are currently under examination with respect to the Law of Civil Execution and the Bankruptcy Law and, in addition to the work identified in 1, there are plans to authorize court clerks to conduct other court affairs as follows:
· Affairs related to the Law of Civil Execution
(a) Disposition of orders for the prepayment of expenses
(b) Disposition of fixing of the determination date of demanding allotment or extensions thereof
(c) Preparation or provision of particulars of property
(d) Disposition of orders for setting the method and completion of sales by an bailiff, and disposition of the stipulated date of meeting for making a ruling on sales
(e) Designation of the deadline for payment or changes thereof
(f) Making an allotment sheet for the amount of credit, the amount of execution cost, and the order and amount of allotment to each creditor as determined by the executing court
· Affairs related to the Bankruptcy Law
(a) Request for registration and recording
(b) Disposition of orders for supplementing petitions
(c) Preparation of a list of bankruptcy creditors
(d) Allowance for final distributions
There is none.
In view of the trends with respect to the number of new cases accepted by each court and the disposition of cases, courts nationwide are making a continuous effort to organize their staffing resources and give consideration to reform.
Moreover, the courts have attempted to streamline court work by means of various policies, and to respond to the increasing workload caused by the rise in the number of cases. For example, after improvements were made to the operations of the summary court by consolidating or rearranging 123 courts in fiscal 1988, a total of 41 district and family court branches were consolidated in fiscal 1990, and efforts were made to improve the operations of these courts, including the conduct of work. Further, in fiscal 1993, 5 summary courts in Osaka and Nagoya and, in fiscal 1994, 11 summary courts in the Tokyo area were consolidated in an effort to improve the conduct of work.
These reforms and policy decisions are examined at the General Secretariat of the Supreme Court, and final decisions are made at the judicial conference of the judges of the Supreme Court.
Judicial administrative affairs, including the management of infrastructure, personnel, and information-technology equipment, are performed on the basis of resolutions made at judicial assembly in the applicable courts. Moreover, the Chief Judge shall preside over judicial administrative affairs as chairperson at judicial assembly.
Judges (including chiefs of branches and presiding judges) and, in particular, Chief Judges having the authority for judicial administration undergo training at a facility for judges known as the Legal Training and Research Institutes to improve the exercise of this authority.
The director of the secretariat administers the miscellaneous affairs for which the office is established under the supervision of the Chief Judge, and exercises supervision over court officials. Therefore, the director of the secretariat is responsible for performing the judicial administrative affairs in accordance with the decisions made at judicial assembly.
There is no such system.
The collection (sorting and dissemination) of information is performed by reference division of secretariat at each high court, district court, and family court nationwide, in addition to the statistics division in the General Affairs Bureau of General Secretariat of the Supreme Court.
Data is collected in regard to each type of case pending in courts nationwide, including, for example, information on cases by type, the number of cases accepted within a certain period by courts, the number of cases terminated, and the number of cases pending. In addition, data is collected on each case terminated, such as details of the acceptance and termination, the period and the frequency of examination of evidence.
Statistical data can serve as the first step in the evaluation of the performance by judges of their duties. However, the complexity and difficulty of cases differs, so statistical data is not regarded as directly connected to an evaluation.
An evaluation of performance by means of questions and the like is not currently conducted with respect to judicial offices and／or chief judges.
In view of the trends with respect to the number of new cases accepted by each court and the disposition of cases, courts nationwide are conducting flexibly a review of personnel assignments.
In order to provide judicial services to satisfy certain standards nationwide, a system is being implemented for the transfer of personnel based on placing the appropriate persons in the appropriate locations. Necessary information for implementing this system for the transfer of personnel is provided by the Chief Judge and others.
There is no such system.
The courts are not in a position to have an overall understanding of ADR in Japan (with the exception of ADR in the form of civil conciliation or family affairs conciliation under the law).
Moreover, with the exception of a portion of civil conciliation and Family Affairs conciliation proceedings for which conciliation is required prior to the filing of a lawsuit (the principle of advance conciliation), there is no mandatory framework for giving priority to out-of-court ADR or pending out-of-court ADR, such as prohibiting a case subject to an ADR proceeding from pending with court or having a judge agree to cease court proceedings.
There is none.
ADR conducted in court, including civil conciliation and family affairs conciliation, is subject to the civil legal aid system. ADR outside of court by mutual assent of the parties is conducted prior to litigation and is subject to the said system when deemed particularly necessary.
The ADR examination committee established at the office for Promotion of Justice System Reform is currently debating whether ADR in general should be subject to the said system in order to further promote its use.
ADR conducted in court, including civil conciliation and family affairs conciliation, is a non-public proceeding, and conciliation commissioners are prohibited from disclosing privileged information learned in the course of performing their duties, and are subject to criminal penalties for a violation thereof (refer to Article 38, Law for Conciliation of Civil Affairs; Article 31, Law for Determination of Family Affairs). The status of ADR conducted outside of court is not understood.
In cases in which conciliation fails, there is no provision under the law to restrict the submission into litigation of materials submitted for an ADR proceeding.
The judge cannot do so.
For ADR that is conducted in court in the form of civil and family affairs conciliation, cases are handled by a conciliation committee comprised of a judge and two or more conciliation commissioners (normally two); the committee attempts to resolve disputes through discussion. The special characteristic of conciliation is its reflection of the good will of the public in dispute-resolving proceedings in court. When appropriate, the members of the conciliation committee offer advice to the parties from the perspective of general citizens having a broad knowledge of and experience with a variety of fields in society. Meanwhile, a judge participates from the perspective of a legal expert. By working together like the wheels on a car, both members can lead the parties toward a proper resolution based on the nature of the dispute.
Regardless of whether the parties agree, the conciliation committee can set a conciliation date, and the court can impose non-penal fine on parties that do not appear without justifiable cause despite having been called (refer to Article 7, Civil Arbitration Regulations; Article 34, Law for Conciliation of Civil Affairs; Article 7, Law for Determination of Family Affairs; Article 10, Non-Litigation Proceedings Act; and Article 27, Law for Determination of Family Affairs).
As specified above, the judge serves as a member of the conciliation committee, so if conciliation fails and a lawsuit is filed thereafter, the same judge may be in charge of the litigation proceedings. However, under the CCVP in Japan, facts that are revealed and materials provided during conciliation can be used as evidence for the court only after their submission as evidence in the litigation proceedings. Therefore, it is not regarded as unfair even if a judge who participates in conciliation is later in charge of the litigation proceedings.
The fees are as follows:
(1) Civil Conciliation
The fees for civil conciliation are less than approximately one-half of the litigation fees. Specifically, the fees are as follows:
Value of subject matter of conciliation
(Fees in case of litigation)
(2) Family Affairs Conciliation
The fee for family affairs conciliation is a flat 1,200 Yen per case.
Members of civil and family affairs conciliation committees are appointed by the Supreme Court. The qualifications for such appointment are as follows: (1) being of expert knowledge and experience, as well as extensive knowledge and life experience, (2) being between 40 and 70 years of age in principle.
(Reference) Article 1, Civil and Family Affairs Conciliation Committee Commissioners Rules
The conciliation committee commissioners who conciliate to reach an agreement are responsible for directing the parties toward a resolution of their dispute on their own accord by taking their opinions into account and properly determining how to reach an appropriate and socially responsible resolution based on consideration of the actual causes of the dispute, as well as the positions of the parties.
In order to obtain the knowledge, skills, and abilities necessary to fulfill their responsibilities, the court conducts thorough training of conciliation commissioners from a multilateral perspective. Specifically, immediately after the conciliation commissioners are appointed, training is provided in regard to the conciliation system, essential legal rules for conducting conciliation as a conciliation commissioners, and the frame of mind necessary to serve as a conciliation commissioners (conciliation commissioners training meetings). After a certain amount of practical experience is obtained, a regular, phased, and diverse variety of research and training meetings are held in regard to techniques for managing conciliation and legal rules in related fields, including the conduct of training utilizing the case method and role playing (conciliation commissioners research meetings, conciliation commissioners case research meetings).
There is no provision in the law or rules explicitly providing the independency of conciliation committee members. However, the conciliation committee includes a judge whose independency is constitutionally guaranteed, and decisions of the committee are based on a majority opinion. In this regard, conciliation commissioners are granted the same authority as the judge, so it can be said that independency is in fact guaranteed, both externally and internally.
It is important to ensure fairness to both parties in a conciliation proceeding, so conciliation commissioners should learn the importance of carefully choosing their words and taking actions so as to prevent their neutrality and fairness from being questioned throughout the training referred to above. Moreover, in the event of actions that are not appropriate as a conciliation commissioner, the commissioner will be dismissed.
When an agreement is reached in conciliation and it is entered in a record, this has the same validity as a final judgment; when a party fails to effect performance in accordance with the agreement, a compulsory execution may be carried out.
In Japan, there is no officially certified mediator for ADR in court other than conciliation commissioners, and no specific provisions for agreements reached before certain accredited mediators and endorsed by a judicial homologation.
Currently, there are no judicial controls particularly with respect to ADR agreements reached outside of court.
The ADR examination committee established at the office for Promotion of Justice System Reform is, from the standpoint of promoting the use of ADR, currently debating the advantages and disadvantages of granting ADR agreements compulsory execution power, and the requirements in cases such power is granted. Based on the premise that such execution power is granted, there are some who are of the opinion that the court should examine the legality (violation of public policy) of these agreements.
The court is not in a position to acquire overall information in regard to ADR for disputes under administrative law, or to understand all circumstances, including whether public entity can participate in an ADR procedure, whether persons representing the entity have the authority to settle disputes, and whether an administrative proceeding is needed to conclude the amicable settlement. However, in relation to independent administrative entity under the law, such as the National Tax Tribunal and the National Personnel Authority, administrative judgment proceedings are held for certain decisions in regard to the filing of complaints against administrative dispositions by the administrative organ, which participates as the other party in these proceedings.
Furthermore, with respect to disputes under administrative law in particular, disputes concerning the effect of administrative dispositions are generally not allowed to settle in litigation and dispute resolution proceedings based on an agreement reached between the parties, including arbitration and conciliation, are not, to our knowledge, held.
In Japan, there is no equivalent to ADR proceedings with respect to criminal investigations or criminal proceedings.
Details on the average term of criminal trial and civil ordinary litigation are attached.
For the data used to compute the average, civil cases are ordinary civil litigation cases and criminal cases are criminal trial cases.
Details on duration of simplified and accelerated procedures are not specified in itself, but the average term in the summary courts as attached hereto is similar to the duration.
The data is a compilation of reports from each court.
Cases handled in the summary court:
In this data, civil cases involving a claim for 900,000 Yen or less (provided, however, beginning on April 1, 2004, the amount was raised to 1,400,000 Yen or less).
Crimes subject to a penalty of a fine or less; crimes for which fines are an optional penalty; and criminal cases involving crimes such as habitual and illegal gambling, larceny, or the receipt of property obtained through a crime against property.
In ordinary civil litigation, the authority of the judge includes the following:
(1) In civil litigation, the presiding judge may restrict the acts of the parties based on the general authority to direct the litigation. Moreover, the presiding judge may designate the period within which a written answer or preliminary documents in which an assertion relating to a particular matter is written must be submitted or evidence relating to a particular must be offered (Article 162, CCVP).
(2) With regard to offensive or defensive measures advanced by a party intentionally or through gross negligence after the proper time, when the conclusion of the litigation is deemed to have been delayed thereby, the court may, upon motion or upon its own authority, render a ruling of dismissal (Article 157 of the said law).
(3) When the court or presiding judge sets a trial schedule (Article 147-3 of the said law), the court or the presiding judge may designate the period for the submission of arguments or defenses in regard to specific items (Article 156-2 of the said law). In this case, if it is found that, as a result of the submission of arguments or defenses in regard to specific items following the expiration of that period, there is a risk of significant interference with the progress of the trial schedule, the presiding judge may reject those arguments or defenses not submitted during the designated period without justifiable reason (Article 157-2 of the said law).
(4) Furthermore, when adjudicating or conducting other proceedings in regard to a case inside or outside the courtroom, the court may, with respect to persons who, through the use of abusive language or otherwise, interfere with the execution by the court of its duties, impose detention of up to 20 days or fines of up to 30,000 Yen, or a combination thereof (Article 2, Law Concerning Maintenance of Order in Court).
In criminal cases, the presiding judge can, on a date for public trial, request explanations from the parties and restrict statements by the parties. In addition, the court can request the submission of opinions in writing or in the form of oral reports, and impose deadlines on the submission of documents, as well as set dates and deadlines for the submission of evidence. Further, the court can restrict insulting words or acts in court and, when the parties do not obey orders, may detain persons or impose non-penal fine. Furthermore, in cases in which there is no petition for an appeal, the court may specify the contents of a judgment at the end of a trial record and the record shall be deemed as equivalent to a written judgment.
Whether a review will be made by a panel or by a single judge is determined on the basis of law, as follows:
All cases in the summary court are handled by a single judge.
All cases in the family court are, in principle, handled by a single judge.
All cases in the district court are, in principle, handled by a single judge, but some cases, a panel decides to be handled by a panel, shall be handled by a panel. This decision is not a decision on judicial administration; but a decision on litigation made by the panel. Furthermore, certain serious criminal cases are handled by a panel.
All cases in the high court and the Supreme Court are handled by a panel.
We are not in a position to respond to the status of implementations of advisories due to Japan’s status of participation as an observer.
Summary litigation procedures apply to the following:
I. Action on bill or check
The proceedings in regard to claims for the payment of money by means of bills or checks are simplified for rapid disposition (action on bill or check).
These proceedings are characterized by the following: (1) a cross action may not be filed (Article 351, CCVP); (2) examination of evidence is generally limited to documentary evidence but, on an exceptional basis, the parties themselves can be examined only in regard to specified items such as the authenticity of execution of documents (Article 352, said law); (3) a koso-appeal may not be made (Article 356, same law; an objections may be raised); (4) the presiding judge shall immediately designate the date for oral argument and summon the parties to appear (Article 213, Rules of Civil Procedure); and (5) the trial shall generally be concluded on the initial day, and continuation dates shall be designated within fifteen (15) days of the preceding date (Articles 214 ~ 215 of the said rules).
II. Action on small claim
In regard to claims for the payment of money in the amount of 600,000 Yen or less, general citizens who are plaintiffs may, at their discretion, select a simplified proceeding as a means of having the summary court resolve the claim swiftly and effectively and at an economic cost appropriate to the amount in dispute (action on small claim).
These proceedings are characterized by the following: (1) the same plaintiff may not file more than ten actions on small claims in any one summary court (Article 368, Paragraph 1, CCVP; Article 223, Rules of Civil Procedure) (this restriction is intended to ensure the widespread use of the system by general citizens); (2) a cross action may not be filed (Article 369, CCVP); (3) the trial shall generally be concluded on the first day, and the parties shall advance all offensive or defensive measures before or on the first day (Article 370, CCVP); (4) examination of evidence may be conducted only with respect to evidence which can be examined immediately (Article 371, CCVP); (5) the defendant may make a statement setting forth that the litigation is to be transferred to ordinary procedures (Article 373, Paragraph 1, CCVP); (6) in cases where the court renders a judgment which authorizes a claim, upon determining it specially necessary to do so, the court may designate a provision of time for the payment or installment payments within a frame not to exceed three years from the day of pronouncing the judgment (Article 375, CCVP); and (7) appeals are not allowed, and only the petition of objections with the summary court rendering the judgment are allowed (Article 378, Paragraph 1 of CCVP).
Action on small claim proceedings were established by the amendment to the CCVP in 1996, and have been well-received by users, so the maximum claim was raised to 600,000 Yen by the amendment to CCVP in 2003.
III. Demand procedure
With regard to a claim, whose object is for the payment of money or delivery of other fungible things or negotiable instruments in a fixed amount, a motion for a demand procedure can be made to achieve a swift and low-cost resolution (Article 382, CCVP). A demand for payment, as specified in (3) hereinafter, will lose effect if the obligor makes an objection, and is generally used when it is anticipated that the obligor will not dispute the claim.
These proceedings are characterized by the following: (1) notwithstanding the amount of the claims, these proceedings are within the exclusive jurisdiction of the duties performed by the court clerk in summary court (Article 383, Paragraph 1, CCVP); (2) a demand for payment shall be issued without interrogating the obligor (Article 386, Paragraph 1, CCVP); (3) these proceedings are transferred to litigation procedures due to objection to the demand by the obligor (Article 386, Paragraph 2; Article 390; Article 395, CCVP).
As specified in A-2 above
In the case of action on bill or check, as well as action on small-claim, as specified in 2 above, trials are generally concluded in one day.
In the case of action on bill or check, the examination of evidence is generally limited to documentary evidence, so the proceedings are primarily conducted on the basis of documentation.
In the case of action on bill or check, the examination of evidence is generally limited to documentary evidence, so for defenses that cannot be proved through the use of documents, assertions with respect to facts are virtually restricted.
These procedures are also allowed in ordinary procedures, but (1) if the defendant does not dispute the factual assertions of the plaintiff in oral argument, and does not submit any means of defense, or (2) if, notwithstanding having been subject to service of process by means of publication of notice, the defendant does not appear on the date for oral argument (excluding cases in which the preliminary documents submitted by the defendant are deemed a declaration made at oral argument), the court may render an oral judgment that is not based on the original copy of the judgment (the judgment is written in the record for the date of oral argument).
Item (iii) is as specified above in II of E-b)-2. Regarding items (iv), (v), (vii), and (viii), authority is not always granted to have a case under a summary proceedings based solely on the reasons specified in each item, but action on small-claim proceedings may be chosen for any of these items and, in these cases, a summary judgment is naturally made on the basis of the said proceedings.
Regarding item (iv), with respect to the relationship between employee and employer, there is no system for judgment in an abbreviated proceeding as specified in 4 (hearings by the judge are conducted solely on the basis of obvious events).
In order to promote the reform of justice system, efforts are being made to establish a labor hearing system, rather than litigation, as a means of simply and swiftly disposing of individual labor-related disputes such as those involving the relationship between employer and employee.
In the labor hearing system, a panel is comprised of one judge and one representative each of the employers and employees. In these proceedings, hearings are conducted on three or fewer dates, and a draft resolution is made. Upon the objection of either of the parties, the draft resolution becomes invalid and the parties proceed to litigation; therefore, the labor hearing system serves as a precursor to litigation.
Regarding item (vi), with respect to divorce (including legal custody of a child accompanying divorce), in principle an effort is first made to achieve a resolution through discussion in conciliation. If, however, conciliation fails, after a lawsuit is re-filed, a decision concerning divorce must be made by the court. While conciliation concerning legal custody of a child or living expenses, a judgment is rendered in the same court as handled the conciliation even without the re-filing of a lawsuit.
Judgments rendered under an abbreviated action on bill, check and small claims have effect under the principle of res judicata. Demands for payment, however, are disposed of by court clerks, so these are enforceable but no res judicata.
In general civil litigation as well as litigation subject to abbreviated proceedings, decisions are generally not made regarding the rights and obligations of the parties prior to commencement of the litigation.
Moreover, even if trials for an action on bill or check, or small claim, are held by means of abbreviated proceedings, these proceedings are the same as those for ordinary litigation. Nevertheless, in civil preservative proceedings (orders for provisional attachment, orders for provisional disposition), decisions are made with respect to the rights and obligations of the parties prior to the commencement of litigation.
The following two types of provisional disposition are recognized in regard to rights in civil litigation:
(1) Provisional disposition pertaining to the subject-matter in dispute
(2) Provisional disposition for designation of a provisional status
For these provisional dispositions, it is necessary to recognize the rights and the need for preservation prior to the litigation. Moreover, in regard to (1), when there is a risk that the creditor will not be able to exercise its rights as a result of a change in circumstances, or that it will become severely difficult to exercise its rights; alternatively, in regard to (2) when necessary to avoid impending danger or severe losses on the part of the creditor in respect of rights, an order for provisional disposition is possible.
Furthermore, provisional dispositions under (2) shall not be issued without resorting oral proceedings or examination on which an obligor can be present due to the significant effects on the rights of the obligor.
In terms of ordinary litigation proceedings, there is no particular provision in regard to the period of hearings. However, based on the amendment made in 2003, a planned trial system was introduced in civil proceedings, so there is some assurance that trials will be held within the period specified for the planned trial system.
Moreover, the court may render an interlocutory judgment, in cases where an independent offensive or defensive measure, or any other interlocutory dispute is ripe for decision (Article 245, CCVP). This does not necessarily ensure that the action will be completed within a reasonable period. However, for example, in cases of unlawful act litigations in which there are disputes regarding both the cause of action and the amount of damages, after an interlocutory judgment is first rendered with respect to the cause of action, a trial is conducted with respect to the amount of damages, so the trial in regard to the cause of action is not held again. As a result, it is possible, to a certain extent, to ensure completion within a reasonable period.
In order to ensure the enforceability of compulsory executions, in addition to security dispositions under the Law of Civil Execution (Article 55, and other articles – a proceeding prohibiting acts decreasing the value of the real estate in which an order can be issued without interrogating the parties), asset disclosure proceedings were established by the amendment to the law in 2003 (Article 196 of the Law of Civil Execution and following articles – a proceeding for calling the obligor to court to have him/her take an oath and make a statement about the asset list).
Provisional attachments under the Civil Preservation Law (Article 20 and following articles and provisional disposition orders (Article 23 and following articles) are shown in E-b)-5 for the purpose of providing advance protection prior to compulsory execution. These orders can also generally be issued without questioning the parties.
Further, although not a prerequisite for a compulsory execution, there is a proceeding for administration of an absentee’s property in order to prevent the loss or dispersion of such property (Article 25, Civil Code; Article 9, Paragraph 1, ko-type 3, of Law for Determination of Family Affairs).
Based on the amendments to the law made in 2003, a system was established to handle evidence collected prior to the filing of lawsuits. Under this system, persons attempting to file a lawsuit can inquire in regard to items clearly required to make or prove assertions following commencement of the action. In addition, such persons can petition the court to request for transmission of document, entrustment of investigation, statements of opinion from experts, or an order for a report on investigation of current conditions by a marshal. Persons attempting to file a lawsuit can review and make copies of these dispositions and, after filing the lawsuit, submit these findings as evidence.
The court will, with respect to provisional executions for judgments of the first instance and suspensions thereof, add a declaration of provisional execution to the judgment when (1) the judgment concerning a claim on a property right, and (2) the court determines it necessary (Article 259, CCVP). Regarding the necessity under (2), the court determines whether, based on the circumstances, the prevailing party particularly requires immediate execution, whether there is a low probability that the judgment will be overturned on appeal, and whether there is a low risk of imposing harm from which it would be difficult for the losing party to recover even if the provisional execution were allowed. In cases of litigation concerning bill or check, a declaration of provisional execution is required. When these declarations are made, the court may have the prevailing party provide security.
When a party that has filed an appeal (losing parties in the judgment of the first instance) petitions for a suspension of execution or pleas that there may be reasons for the judgment of the first instance to be annulled or changed and that there is a risk that execution under (2) would cause significant harm, based on a determination by the court, execution based on a judgment that includes a declaration for provisional execution may be suspended. In such a case, the court may order the person petitioning for the
suspension of execution to provide security.
Japan participates as an observer, so we are not in a position to respond in regard to the status of advisory opinions.
Japan participates as an observer, so we are not in a position to offer an opinion in regard to the foregoing items.
Japan participates as an observer, so we are not in a position to respond in regard to the status of advisory opinions.
Systems in Japan that intended to make criminal court proceedings swift, short, and informal include the simplified trial procedure and summary proceedings.
In the simplified trial procedure, with respect to cases of which statutory penalties do not exceed a certain level of gravity under criminal law, when the defendant admits his or her guilt on the facts on which he or she is charged, the court may, after hearing the opinions of the prosecutor, the defendant, and his or her counsel, simplify the review of evidence. This system differs from the proceedings for guilty plea.
In summary proceedings, the summary court may, when the accused does not object and upon the request of the prosecutor, impose pecuniary penalties within a certain scope based on a written review without holding a public trial. Summary proceedings are widely used for cases to be slapped with small fine and minor fine.
The court may postpone proceedings owing to a failure by a party to appear on the date for public trial or an existence of inappropriate circumstances to proceed.
Included within cases involving a violation of the Road Traffic Law is a system for imposing not punishment, but administrative fines for violations based on the operation of a vehicle by a driver when there is a low level of danger or the operation is not wicked. When, with respect to taxes, the under-reporting of income has antisocial or unethical implications, there is a system for imposing heavy additional taxes, in addition to a system for the notification of disposition in which the head of the tax office orders the payment of amount of money equivalent to fine to those who have violated laws. Moreover, with respect to customs, there is a system for the notification of disposition in which the head of the customs office orders the payment of amount of money equivalent to fine to violators when offenses are relatively light.
Criminal penalties will not, without exception, be imposed unless a defendant has received a trial in a court according to procedure established by law. However, in the case of administrative fines for violations of the Road Traffic Law under (ii) above and dispositions by public notification for violations of tax laws, the violators who pay the amounts imposed as a sanction will not be prosecuted or subject to criminal penalties. In such a case, however, the amounts imposed as a sanction are to be voluntarily paid by the violator and are not imposed as a penalty.
When cases that do not exceed a certain level of gravity under criminal law, and in which the defendant admits his or her guilt on the facts on which he or she is charged, the court may, after hearing the opinions of the prosecutor, the defendant, and his or her counsel, simplify the review of evidence. Moreover, the summary court may, if the accused does not object and upon request of the prosecutor, impose pecuniary penalties within a certain scope based on a written review without holding a public trial.
The percentages of crimes reviewed in accordance with these proceedings are as shown in the attachment (marked sections).
There are no proceedings in Japan equivalent to proceedings for entering a guilty plea.
In the absence of certain conditions of lawful prosecution, proceedings will be terminated on the basis of a judgment of dismissal of prosecution. In the event of a judgment/ decision of dismissal of prosecution as grounds are provided by law, if the reasons are recognized by the court, judgment/decision of dismissal of prosecution must be held. Items provided by law include the following: (i) when there is a serious defect in the proceedings for institution of prosecution, and such defect cannot be supplemented or corrected, so the proceedings become null and void; (ii) when a court has no jurisdiction over the accused; (iii) when, after the withdrawal of public prosecution, the prosecution is instituted again without satisfaction of the legal requirements; (iv) when a prosecution is instituted twice; and (v) when the copy of information fails to be served on the accused within the legal period.
Summons of the accused and witness are served by writs of summons by mail or other means, and persons appearing in court on that date may receive a verbal summons. Announcement of a judgment shall be made by pronouncement in case it is rendered in open court, and by serving a copy of the judgment in other cases. Therefore, notification is allowed in simple and rapid way such as service of decision by mail.
For a trial, a document of decision must be prepared in principle. However, there is an exception as follows: when there is no petition for an appeal, there is a system that the court clerk is directed to write the main text of the judgment, the summary of the fact constituting the offence and the application of laws or ordinances at the end of the record on the date of the hearing of a public trial for sentence, and this document serves in lieu of a judgment document.
We are not in a position to respond, since the suggested system differs from the legal system of Japan.