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[ccje2005/docs/CCJE(2005)16e] English only
CONSULTATIVE COUNCIL OF EUROPEAN JUDGES
(CCJE)
QUESTIONNAIRE ON THEME
“JUSTICE AND SOCIETY”
Reply submitted by
the delegation of Japan
A1
The measures taken to make court proceedings easier to use and to improve understanding of the court system in the general public are as follows:
(1) Websites
The organization of courts, explanation of various court proceedings, and information on judicial precedents are put on.
(2) P.R. journal
The General Secretariat of the Supreme Court publishes P.R. journals twice a year for the general public that introduces topics relevant to the court system, etc.
(3) Pamphlets and leaflets
The General Secretariat of the Supreme Court produces pamphlets and leaflets explaining the court system in general and various court proceedings.
(4) P.R. videos
The General Secretariat of the Supreme Court produces P.R. videos explaining the court system and the role of the courts for elementary school students, junior and senior high school students, and the general public respectively.
(5) P.R. events
Each court conducts court tours, dispatches judges as lecturers, holds moot court, and conducts seminars on court proceedings, etc.
A2
Refer to the A1 responses.
A3
After selecting major judicial precedents which are helpful to resolve disputes in society and using fictions names to protect the privacy of the people concerned, the following judicial decisions are put on the website.
(1) Recent major decisions by the Supreme Court
(2) Reports of the Supreme Court Judgments
(3) Reports of the High Courts Judgments
(4) Reports of administrative litigation
(5) Reports on cases on labor relations
(6) Slip opinions for intellectual property right cases
(7) Reports of intellectual property right cases
(8) Information on major judicial decisions by inferior courts
A4
Each court conducts court tours for students, and the total number of students visiting the courts nationwide in 2004 exceeded 150,000. In some cases, tours and court hearing are conducted together and a judge in charge of a case explains about the case and the proceedings after the court hearing. Furthermore, judges visit elementary, junior, and senior high schools and explain about the court system, etc., in an easy way to understand and answer students' questions. In addition, judges are dispatched to teachers' training courses and give lectures and exchange opinions.
Judges are also dispatched to postgraduate law schools to educate students.
A5
Refer to the A4 response.
A6
A committee member was dispatched from the Supreme Court to the "Legal Education Study Group" established by the Ministry of Justice in July 2003. The group conducted research and study for the improvement of learning opportunities about the justice and laws in school education, etc., and the member participated in preparing a report of the research results.
In the report, the following three items were highlighted as what courts should do as law practitioners to disseminate legal education in the future:
(1) To further promote current practices that include the dispatches of judges as lecturers, mock trials, mock arbitrations, court hearings with a guide, and court tours.
(2) To cooperate in the production, verification, and improvement of materials for legal education
(3) To dispatch judges for teachers' training courses
(Note) Legal education means education for the general public, who are not legal experts, to understand laws, the judicial system, and the values upon which laws and the system are based and to cultivate legal way of thinking.
B1 & B2
a)
1. Training programs for judges
a. Lectures about international trends in human rights issues
b. Lectures about human rights issues as related to women and foreigners
Newly appointed judges and persons newly appointed as leaders of courts attend.
2. Legal training (training to be a judge, public prosecutor, or attorney after passing the National Bar Examination)
a. Lectures about international trends in human rights issues
b. Lectures about human rights issues as related to women and foreigners
c. Practical training (Under the individual instruction of active judges, public prosecutors, or attorneys, through experiencing the handling of actually proceeding cases and through the instruction of senior legal experts in the practice of specific cases, experiential training is given including on the importance of a fair and equal manner in contacting the parties concerned.)
Among the programs for legal apprentices, there is compulsory training and elective courses.
3. Training programs for court staffs
a. Lectures on human rights issues
b. Lectures on gender-equal society
c. Lectures on the points to keep in mind, mental attitude, and techniques in contacting the parties
Court staffs such as court clerks, family court probation officers, and court secretaries attend.
4. There is a system whereby persons selected from the general public work part-time for conciliation procedures and legal proceedings of civil cases together with judges (a person working on conciliation procedures is called a conciliation commissioner and a person working on legal proceedings of summary court is called a judicial commissioner). Training programs are given to the commissioners at courts on mental attitude and attitude for contacting the parties to ensure that they do not cause doubt on fairness when working on the procedures with their verbal or non-verbal communication.
5. Training programs are given to conciliation commissioners and family court councilors also by family courts. A booklet called “Guidelines for Family Conciliation” also draws their attention to the mental attitude required to get people's confidence and to maintain confidentiality of information gained through the performance of duties. In addition, according to recent changes in society’s attitudes, guidance is given so that they understand gender neutrality and adopt a flexible way of thinking to appreciate the mentality and status of both genders without promoting the idea of fixed gender roles.
b)
There are no programs to improve the infra-structural organization of courts "aiming at removing causes of distrust in the courts", but the following can be listed as programs to improve the infra-structure aimed at making courts easy to use for citizens.
Round-table court
For cases with small amount in controversy, a round-table is used instead of the traditional seat arrangement in court, which results in satisfactory conclusions for the parties by proceeding with the trial in a free non-restrictive atmosphere.
Video link system
For witnesses for whom it may be psychologically difficult to testify in court, they can testify in another room via a monitor and have in an attempt to ease their psychological burden.
Low counter
For the counter in court, a counter lower than the traditional one is used so that people in wheelchairs can give and take documents without getting up.
c)
1. A video briefly explaining the proceedings in a family affairs case is shown at the reception for the parties and people coming to Family Court. In addition, leaflets such as "A Guide to Family Court" are provided so that people can use them to understand the procedures of family law court cases.
In some courts, services are provided by telephone and facsimile to explain the method on how to file a family affairs case and its requirements.
2. Family courts attempt to avoid juveniles and guardians getting in trouble for not knowing the procedures by sending documents that outlines juvenile court procedures and by giving verbal instructions.
For victims, the Supreme Court website explains the three systems concerning victims (victim's inspection and copying of the records on juvenile cases - Article 5-2 of the Juvenile Law, hearing of victim's opinions by family court - Article 9-2 of the Juvenile Law, notification to the victim about the court decision, etc., on the juvenile - Article 31-2 of the Juvenile Law), and attempts to publicize this system for victims by placing leaflets for victims in family courts and related agencies nationwide.
3. The Supreme Court makes a "Video for Foreigners' Cases" explaining Japanese criminal justice procedures (procedures of questioning before detention, procedures in a public trial).
It is used, for example, to show the procedures for questioning before detention while the person is waiting for questioning and the procedures in a public trial while waiting for the opening of the first trial.
c) or d)
1. Refer to the A1 responses.
2.a. At summary courts handling small claims civil cases, for parties who will be representing themselves because they cannot afford an attorney are provided videotaped information and leaflets explaining the proceedings are provided at the courts' receptions. In addition the court staff at the reception gives instructions to the parties on the proceedings and on required documents as much as it does not impair fairness of courts. Judges and court staffs also explain during the court proceedings to the parties in plain words.
b. To prevent domestic violence, there is a procedure to protect victims from their spouses. To avoid judges and court staff from further harming the victim with his/her language and behavior, the cases are handled carefully by taking the gender problem and victims' state of mind into consideration to secure the victim. The proceedings are also carried out expediently in cooperation with police and the victim protection facility.
c. For civil proceedings, with the proceedings to define the issue of the case and those for amicable settlement, to enable the parties who are not used to the court proceedings to frankly state their opinions, the proceedings are carried out not in a courtroom with bench and steps but in a courtroom (room) with a round-table so that the judge and the parties can sit and discuss together.
"Comprehensive Legal Assistance Law" was enacted in the Diet session of 2004.
This law stipulates the basic items regarding the practice and improvement of the system for comprehensive assistance (hereinafter "comprehensive legal assistance") so that the system to solve disputes by trials and other legal procedures become easier to use and that the services of lawyers and the people engaged in legal business for others become easier to access. It also stipulates about the organization and administration of the Japan Legal Assistance Center, which is the key part of the law, and aims at building a freer and fairer society.
Furthermore, it stipulates that the purpose of the practice and system improvement of comprehensive legal assistance is to realize a society where information and services necessary for legal solution of disputes, whether it is a civil or criminal case, are provided all over the country, and that the information to effectively use the system to solve dispute by legal procedures and the information on the businesses of lawyers and neighboring legal specialists, etc., should be readily provided.
B3
There is no relevant information.
C1
Refer to the A1 response.
C2
Refer to the A1 response.
C3
There is no relevant information.
C4
1. Civil Cases
a. In Japan, freedom of expression including the right to information is guaranteed under Article 21 of the Constitution. In addition, Article 82 of the Constitution stipulates that trials shall be conducted and judgment declared publicly, the general public including the mass media therefore can access information on legal activities through public trials.
Based on the stipulation in the Constitution, oral proceedings of civil cases, which are the final proceedings to
collect necessary information to make a decision on the facts and to determine whether or not there are the rights and duties the parties claim, should be made public to secure fairness of the trial, and it will be an absolute grounds for jokoku-appeal if the stipulation on publicity is contravened (Article 312, para.2, sub-para.5 of the Code of Civil Procedure). In personal affairs cases however, it is often required to protect the privacy of the parties such as in divorce cases, and therefore under certain conditions the proceedings such as questioning to the parties may be conducted privately (Article 82, para.2 of the Constitution, Article 22 of the Law for Litigation of Personal Affairs).
While oral proceedings of civil cases are basically made public, the procedures for civil preservation and civil execution, for example, of which the final purpose is not to make a decision on the facts and to determine whether or not there are the rights and duties, publicity is not required by the Constitution and not stipulated in any laws.
b. The general public including the mass media can access information on civil cases by inspecting the record of civil cases. In other words, the Code of Civil Procedure stipulates that, respecting the principle of disclosure in the Constitution, the general public should be able to freely inspect the record on legal cases as a general rule (Article 91, para.1 of the Code of Civil Procedure). As exceptions, regarding the record of legal cases relating to the oral proceedings of personal affairs cases of which examination of parties is prohibited to be disclosed, the people with access is limited to the parties and the third party who made prima facie proof on the interests concerned (Article 91, para.2 of the Code of Civil Procedure). In addition, when the parties plead the court to limit the access for the reason of infringing serious confidential information about private life, etc., and when it is accepted, the people other than the parties are prohibited from inspecting the record (Article 92, para.1 of the Code of Civil Procedure).
Regarding the record of legal cases supposed to have public legal proceedings, as mentioned above, the
general public including the mass media can access as a general rule, but regarding the procedures of civil preservation and civil execution not supposed to have public legal proceedings, the people with access to the record is limited to the interested parties, etc. (Article 17 of the Law of Civil Execution, Article 5 of the Civil Preservation Law, etc.). In addition, in a procedure of civil preservation, for example, a time limit is imposed, i.e., the record is not accessible until the preservative order is served to the obligor, because the obligor may hide the assets and therefore the protection on the assets is ordered basically without informing the obligor about the development of the procedure (Article 5 of the Civil Preservation Law, etc.).
c. Incidentally, regarding civil proceedings, although there is no law to directly prohibit the mass media, etc., from
publicizing names, etc., of the people concerned on trial, the matters concerning privacy are legally protected
from being exposed without permission and in some cases publication of names, etc., of the people concerned
on trial is considered to constitute a tort liability.
2. Criminal Cases
Proceedings (procedure in a public trial) and judgments on a court day are in principle open to the public. However, when it is unanimously agreed by the judges that it is considered to harm the public order or good morals, proceedings can be closed to the public. Records of criminal case trials are basically accessible to anyone after the conclusions of the cases. Before the conclusion, only the parties (defendant, public prosecutor, attorney, etc.) in principle can access the record, and the method and scope for accessibility is different depending on the party and may need the permission of the court for reasons such as the nature of the document and evidence and the risk of falsification and loss. There are codes that stipulate the duty to maintain confidentiality on judicial inquiry or that information regarding legal procedure should not be publicized. (They may fall under Article 100 of the National Civil Service Law and Article 23 of the Practicing Attorney Law.) The "Law for Implementation of a Saiban-in System in Criminal Court Procedures" is scheduled to be enforced by May 2009. In Article 72 of the law, it is prohibited to publicize names, addresses, and other information that can identify saiban-in (lay judges).
3. Family Affairs Cases
Due to the confidentiality of family affairs cases, the records are not available for anyone to inspect and copy freely. Only when an interested person of the case and recognized as appropriate, he/she can inspect or copy the record with the court's permission (Article 12 of the Rules for Adjudgment of Domestic Relations).
4. Personal Affairs Cases
A court shall permit inspection when the party requests to inspect the section of the research concerning the appointment of a person having parental power, etc. However, regarding a section considered to be detrimental to the best interests of the juvenile or to the privacy of the private life or business of the party or of the third party, even if it is a request from the party, the court can permit its inspection and copying only when the court considers it appropriate from the viewpoint of protecting the best interests of the juvenile or the privacy of the parties. Also for an application of inspection from a third party who has made prima facie proof about the interests concerned, the court can give permission only when the court considers it appropriate (Article 35 of the Code of Personal Status).
5. Juvenile Delinquency Cases
The Juvenile Law stipulates that the hearing of juvenile trials should be closed to the public (Article 22, para.2 of the Juvenile Law). It also stipulates that, in respect to a juvenile who has been brought to proceedings in a Family Court or a person prosecuted of an offense that he committed while he was a juvenile, such accounts or photographs that contain his name, age, occupation, dwelling, appearance, etc., which may identify the said person of the case, shall not be published in newspapers or other publications (Article 61 of the Juvenile Law).
However, the victim can inspect and copy the record of the juvenile delinquency cases with the court's permission and can receive notification on the disposition of the juvenile (Article 5-2 and 31-2 of the Juvenile Law).
There are no law or court precedents to prohibit disclosures of the name of a judge or a public prosecutor involved in a case.
6. Intellectual Property Rights Cases
a. About a claim for an order to maintain confidentiality
(1) When prima facie proof is made on (a) trade secret is included in the brief or in evidence and (b) it is necessary to prevent the use or disclosure of the said trade secret other than for the purpose of litigation, by a claim of the party, a court can give an official order to the parties and others such as attorneys or assistants to the effect that the trade secret should not be disclosed for the purpose other than the litigation or to the person other than the one ordered to maintain confidentiality (Article 105-4 of the Patent Law, Article 30 of the Utility Model Law, Article 41 of the Design Law, Article 39 of the Trade Mark Law, Article 6-4 of the Unfair Competition Prevention Law, Article 114-6 of the Copyright Law).
The necessary penalty is imposed for violation of this order to maintain confidentiality (Article 200-2 of the Patent Law, Article 60-2 of the Utility Model Law, Article 73-2 of the Design Law, Article 81-2 of the Trademark Law, Article 14, para.1, sub-para.6-2 of the Unfair Competition Prevention Law, Article 122-2 of the Copyright Law).
(2) The person who made a claim for an order to maintain confidentiality, or the person who was ordered to maintain confidentiality, can request the court where the judicial record exists, to cancel the order for the reason that the requirements for an order to maintain confidentiality are not satisfied or that the conditions became unsatisfactory for the requirements of an order, and the order to maintain confidentiality is valid until this cancellation becomes valid (Article 105-5 of the Patent Law, Article 30 or the Utility Model Law, Article 41 of the Design Law, Article 39 of the Trade Mark Law, Article 6-5 of the Unfair Competition Prevention Law, Article 114-7 of the Copyright Law).
b. Suspension of opening of legal proceedings when trade secrets become an issue
(1) For lawsuits to seek an injunction for reasons of infringement on business profits as a result of unfair competition or of infringement on a patent right, to claim for indemnity, to claim for measures to recover credit, or to claim for confirmation on non-existence of a right for any of these claims, when the party himself or herself is the basis for the judgment on whether it is an infringement or not and when the party or a witness is questioned on a matter falling under the category of trade secrets possessed by the party, the court can privately conduct the questioning on the matter concerned if the judges unanimously agree that the following requirements of (a) and (b) are satisfied.
(a) There is a truly unavoidable reason that the party cannot make a full statement on the matter concerned because it is clear that, if the party makes a statement on the matter in open court, the trade secret concerned loses its secrecy and confidentiality and it causes great hindrance to the business activities based on the trade secrets of the party.
(b) Lack of the said statement could lead to a misjudgment of the reality, i.e., the court cannot make an appropriate judgment, which should be made based on the matter concerned, if only by other evidence, about whether or not there was an infringement of business profit or on a patent right due to unfair competition.
(2)(a) When a court decides to suspend the opening of legal proceedings,
- The procedures such as asking opinions of the parties beforehand should be taken, and
- There is a regulation similar to an in-camera trial to secure the protection of trade secrets in the trial to judge whether it falls under the requirements of (1) mentioned above.
(b) When a court has a private questioning based on the decision of the suspension,
- When the questioning of the matter is conducted privately, the reason should be provided to the public in the court before making them leave the courtroom, and
- When the questioning of the matter is complete, the public should be called back into the courtroom (Article 105-7 of the Patent Law, Article 30 of the Utility Model Law, Article 6-7 of the Unfair Competition Prevention Law).
7. Case Records
a. [Civil cases, cases against the government] Article 91, para.1 of the Code of Civil Procedure
In principle, any person may make a request to the court clerk for perusal of the record of a case.
In principle there is no limit for the time that a request can be made.
b. [Criminal cases] Article 53, para.1 of the Code of Criminal Procedure
In principle, any person may examine the records of trial after the conclusion of a criminal case. However, this shall not apply in case the examination interferes with the preservation of the records of trial or with the business of a court or a public prosecutor’s office.
C5
NA
C6
There is no special legal procedure to guarantee access by journalists.
The Public Information Division of the General Secretariat of the Supreme Court (a judge is appointed as the Division Chief) and the General Affairs Section of Secretariat of each of the inferior courts handle matters related to journalists.
There are no regulations and rules about judges making comments to the press.
C7
There is no substantive enactment, but television filming is permitted, if the panel of judges permits it, for up to two minutes before the opening of a trial. In doing so, the general conditions are that film editing such as trimming a specific person should not be done.
C8, C9
(Civil Affairs)
1. Defamation
a. Honor, namely the "objective estimation by society on the value of a person's quality such as moral character, virtuous deed, fame, credit" (June 11, 1986, Decision of Supreme Court's Grand Bench, Reports of the Supreme Court Decisions on Civil cases Vol.40 No.4, at 872), is considered to be important interest protected by law as well as life and body. The act to defame someone's honor intentionally or negligently, whether by verbal or by documentary method, constitutes an illegal act in accordance with the Civil Code (Article 709 of the Civil Code).
However, even when defamation is made by specifying a fact, its illegality is exempted when (1) the fact specified is proved to be true, (2) the act is about a fact concerning public interest, and (3) it deviates from the purpose of serving the public interest. In addition, when the fact specified is not true, if there is enough reason to believe it is true, deliberation and negligence are denied and it does not constitute an illegal act (June 23, 1966, Decision of Supreme Court, Reports of the Supreme Court Decisions on Civil cases Vol.20 No.5, at 1118).
In addition, regarding defamation made by expressing opinion or comment, when (1) the act is about a fact concerning public interest, and (2) its purpose is only to serve the public interest, if (3) it is proved that the important part of the fact the opinion or comment is based on is true, its illegality is exempted unless (4) it deviates from the realm of opinion or comment such as insulting someone personally. Even when there is no proof that the fact is true, if the actor has enough reason to believe it is true, deliberation and negligence are denied and it does not constitute illegality (September 9, 1997, Decision of Supreme Court, Reports of the Supreme Court Decisions on Civil cases Vol.51 No.8, at 3804).
The above criteria are applied to both public figures and private individuals. (*)
* (Related to C9)
For information provided by the press, it is judged according to the criteria mentioned above whether or not it is an act of defamation. There is a precedent that, even when the press collects news material from an authorized investigator, at the stage before a public announcement by the investigative authorities, it is not considered sufficient reason to believe it is true because more material was not collected, and therefore, the press could not be considered not at fault (November 16, 1972, Decision of Supreme Court, Reports of the Supreme Court Decisions on Civil cases Vol.26 No.9, at 1633). On the other hand, there is a precedent that, when the actor of defamation specified the fact by using a decision of the first criminal trial, unless there is no special reason, even if a different determination was made later in appellate court, it is considered that there is enough reason to believe the specified fact was true (October 26, 1999, Decision of Supreme Court, Judicial Precedent Times No.1692, at 59).
b. A person whose honor was illegally infringed by someone else's language or behavior can claim for indemnity from (Article 710 of the Civil Code) or for punishment to recover their honor on (Article 723 of the Civil Code) the person who infringed their honor. As measures for recovering their honor, publication of apology ad in newspapers, etc. or publication of an apology document can be ordered or publication of a correction of wrong information or cancellation can be requested to the person who infringed the honor. The system of punitive damages such as is seen in common law countries of, however, is not established. (*)
When infringement of honor is legally granted, there is no established standard and no extenuating circumstances for the amount of indemnity. Generally, the judge decides it depending on the case by comprehensively considering cause and purpose of offending act, content of defamation, degree of credibility and reasonability of defamation, extent of dissemination and information carrying capacity, age, job, and history of the victim, social valuation, disadvantages to the business and social life of the victim, etc.
c. Furthermore, the person whose honor is infringed can claim for the prohibition of the infringing act to eliminate existing infringement or to prevent expected infringement in the future. The advance prohibition, however, is permitted only under strict and clear requirements outlined in Article 21 of the Constitution that guarantees freedom of speech and no censorship. Only when the expressed content is not true or when it is clear that its purpose is not to serve the public interest, and when the victim could be seriously damaged which is quite difficult to recover from, suspension of publication or ban of book sales, etc., is accepted as an exception (above-mentioned June 11, 1986, Decision of Supreme Court's Grand Bench).
* As another system for ex-post facto remedy, the Broadcast Law stipulates the system to broadcast about corrections (Article 4), and when a personal right such as the right of honor is infringed by untrue broadcasting, the request can be made to the broadcasting company to confirm the broadcasted content and to broadcast the correction or cancellation.
2. Right to privacy
An individual may be seriously damaged if his/her private life or private information he/she does not want to be known is disclosed. The interest that private life should not be disclosed in vain therefore is considered an important interest protected by law (September 28, 1964, Decision of Tokyo District Court, Reports of Inferior Courts Decisions on Civil cases Vol.15 No.9, at 2317). The act to infringe another's privacy intentionally or negligently constitutes an illegal act by the Civil Code and, as well as defamation, a claim for indemnity (Article 710 of the Civil Code) and a claim for prohibition can be made (Refer to April 14, 1981, Decision of Supreme Court, Reports of the Supreme Court Decisions on Civil cases Vol.35 No.3, at 620, February 8, 1994, Decision of Supreme Court, Reports of the Supreme Court Decisions on Civil cases Vol.48 No.2, at 149, September 24, 2002, Decision of Supreme Court).
(Criminal Affairs)
Major criminal punishments are for defamation (Article 230 of the Criminal Law) and insult (Article 231 of the Criminal Law).
For protecting people's honor, the article on defamation (Article 230 of the Criminal Law) stipulates that a person who defames another by publicly alleging facts shall, regardless of whether such facts are true or false, be punished, and also stipulates that a person who defames a dead person shall not be punished unless such defamation is based on a falsehood and the person definitely knows it.
However, when the act is found to relate to matters of public interest (matters concerning the criminal act of a person for which a prosecution has not yet been instituted shall be deemed to be matters of public interest) and to have been done solely for the benefit of the public and, upon inquiry into the truth or falsity of the alleged facts, the truth is proved, punishment shall not be imposed (Article 230-2, para.1 and 2 of the Criminal Law).
When such act is done with regard to matters concerning a public official or a candidate for elective public office, and, upon inquiry into the truth or falsity of the facts, the truth is proved, punishment shall not be imposed (Article 230-2, para.3 of the Criminal Law).
The article about insult (Article 231 of the Criminal Law) is to punish a person who publicly insults another person even if he/she commits such an act without facts.
C10
Refer to the C8 response.
C11
Refer to the C8 response.
For criminal proceedings, there is no relevant legal regime.
C12
Refer to the C8 response.
For criminal proceedings, there are no protective measures.
C13
In Japan, the status of judges is guaranteed by the Constitution, and all judges are independent in the exercise of their conscience (Article 76, para.3 of the Constitution) and are not to be removed except by public impeachment unless judicially declared mentally or physically incompetent to perform official duties (Article 78 of the Constitution).
An impeachment court is set up by selected members, 7 members each, from among the members of the House of Representatives and the House of Councilors (Article 64 of the Constitution, Article 125, para.1 of the Diet Law, Article 16, para.1 of the Law for Impeachment of Judges). The grounds for a judge's removal are that the judge conducts in grave contraventions of official duties or grave neglect of official duties and other misconducts seriously affecting the integrity of a judge (Article 2 of the Law for Impeachment of Judges) and a judge is not removed unless it is decided by an impeachment court.
Regarding suspensions, an impeachment court can, when it is agreed appropriate, suspend the duty of the judge who was impeached for dismissal (Article 39 of the Law for Impeachment of Judges).
３５
- national legislation on access to information, journalists’ access to court hearings and files, and statutory foundation of journarists’ liability;
Refer to the C6 response.
- relevant national case-law on freedom of expression, protection of private life and human dignity;
1. Date of the judgment1994.2.8
Case number1989 (O) No.1649
* Judgment on propriety of the claim for damages in the event that the previous
conviction, etc. of a person was publicized in nonfiction material using his
real name
Title: Judgment on propriety of the claim for damages in the event that the
previous conviction, etc. of a person was publicized in nonfiction material
using his real name
Claim for Consolation Money
Judgment of the Third Petty Bench; dismissal of an appeal
[The Court of First Instance] Tokyo District Court
[The Court of Second Instance] Tokyo High Court
Summary of the Judgment
In the event that the fact concerning the previous conviction, etc. of a person was publicized in a work using his real name, the above person may require compensation for the mental anguish that he suffered from the publication if the legal benefit of not publicizing the fact concerning the previous conviction, etc. surpasses the reason for publicizing it based on (1) the decision over that person's living situation afterward, (2) the historical or social significance of the said criminal case in itself, (3) the mportance of that person as a party in the case and (4) the social activities of that person and his
influence, together with the significance and the necessity of using his real name in the light of objects, characteristics, etc. of the work.
References
Article 709 and Article 710 of the Civil Code
Presiding judge, Justice OHNO Masao
Justice SONOBE Itsuo
SATO Shoichiro
KABE Tsuneo
CHIKUSA Hideo
2. Date of the Judgment1969.11.26
Case Number1969 (Shi) No.68
Ruling upon case of the so-called HAKATA RAILWAY STATION CASE and a Court Order
to produce films collected for news report
OUTLINE OF THE CASE
The origin of this case go back to January 16, 1968, when about 300 radical students got off a train at Hakata Station on their way to Sasebo to demonstrate against the USS Enterprise. There, they clashed with the police. One student was placed on trial on a charge of obstructing the performance of official duty. However, the Fukuoka District Court acquitted the student while placing the blame for the clash on the excessive guard and the overzealousness of the police. Thereupon the Japan Socialist Party and the National Federation for Protection of the Constitution filed charges with the Fukuoka District Procurator's Office against alleged 870 police officers' violent and
brutal actions. The Procurators Office decided not to indict them. The dissatisfied plaintiffs then petitioned the Fukuoka District Court to investigate whether or not there was sufficient grounds to try the alleged suspects, under Article 262 of Law of ciminal Procedure. On the process of the hearing for examining the well-foundedness of the petition, the Fukuoka District Court issued orders to four television stations demanding
submission of their newsfilms of the Hakata incident for use in
determining the matter. A special Kokoku appeal has been lodged to the
Supreme Court against the ruling of the Fukuoka High Court affirming the
order of the Fukuoka District Court.
Decided on Nov. 26, 1969
Case Number (Shi) No. 68 of 1969
RULING
Appellants:R.K.B. Mainichi Hoso Co., Ltd. represented by chief
director, Shuzo Kaneko
Kyushu Asahi Hoso Co., Ltd. represented by chief director, Shin
Takano
T.V. Nishinihon Co., Ltd. represented by chief director, Kodama
Tanaka
Director of Fukuoka broadcasting station, N.H.K. Kazuo Sano
Whereas a special Kokoku appeal has been lodged by the appellants against the ruling pronounced by the Fukuoka High Court on September 20, 1969 dismissing the Kokoku appeal against the order to the appellants demanding to submit the news-films, this Court renders ruling as follows:
MAIN TEXT
The special Kokoku appeal in this case is hereby dismissed.
REASONS
The grounds for this special Kokoku appeal are as stated in the annexed documents hereof.
Concerning the reasons for this special Kokoku appeal submitted by the appellants themselves, the additional reasons submitted by Attorney Toshio Murata for the appellants and the first reason of the supplementary reasons submitted by Attorney Akira Senoo and other two Attorneys for the appellants:
The gist of these contentions alleging a violation of Article 21 of the Constitution is as follows. The freedom to report news holds an important place in Article 21 of the Constitution, as one of the bases of a democratic society for which the Constitution of Japan stands, and in order to make the freedom of reporting news perfect, the freedom of news-gathering activity too should be guaranteed as being indispensable under article 21 of the Constitution. The reason why the freedom of news-gathering activity has been in fact widely secured to news media up to this time is that there has existed such faith and actual results on the part of news media and such confidence on the part of the general public as news are gathered solely for the purpose of reporting and collected data are not to be used for other purposes. However, if the court order demanding to submit the news films for the purpose of using them as evidence for a criminal trial is affirmed as to be legal and news media are obliged to obey the order, the public confidence in the news media would be forfeited and their co-operation would be lost, and consequently the freedom of reporting the truth would be paralysed. As a result the general public can not get enough data for their judgment in executing their sovereign power, and their "right to know information", the constituent of the freedom of expression would be unduly hampered. In the end this order demanding to submit the films is repugnant to Article 21 of the Constitution guaranteeing the freedom of expression.
The opinion of this allegation is as follows:
In our democratic society, as is pointed by appellants, the news reports offer important materials for the people to make their judgments in participating in the government and make a contribution to the realization of their "right to know information". Therefore, it goes without saying that the freedom of reporting news together with that of expression of thoughts is guaranteed under Article 21 of the Constitution providing the freedom of expression. And, for the purpose of helping the news reported by news media, the freedom of news-gathering activity as well as that of
news reporting is to be sufficiently respected, in the light of the purport of Article 21 of the Constitution. What are demanded to submit in this case are news films prepared for broadcasting, including some which were already sent on the air. Since
those are the things which news media have already gotten in their hands through their news-gathering activities, the court order demanding to submit has no direct relation with the news-gathering activity itself. Nevertheless, if the films gathered by news media for the purpose of serving for the aim of news report are used for other purposes, for the purpose of serving as evidence in a criminal trial like in this case, it can not be said that there will be no fear of any future hindrance to the freedom of news-gathering activity of news media. As a matter of course, for instance the freedom of news-gathering activity too, however, shall not be absolute one not subject to any restriction, and when there is such a Constitutional request as the realization of a fair trial it can not be denied that the freedom of news-gathering activity should be restricted to a certain degree.
While the question of whether or not any restriction to the freedom of news-gathering activity should be admitted for the purpose of the realization of a fair criminal trial is the issue of this case, it goes without saying that the realization of a fair criminal trial is one of the national fundamental requests, and that the revealing of true facts is strongly requested in criminal trials. It should be said that we can not but restrict the freedom of news-gathering activity to a certain degree when the data collected by news media is considered to be necessary as evidence in order to secure such a fair criminal trial. Even in such a case, however, the character, mode and gravity of the crime which is the object of the trial, evidential value of the data and the existence of the necessity for the realization of a fair criminal trial should be considered at first, and then they should be balanced with the degree of the hindrance to the freedom of news-gathering activity which would occur when news media are obliged to submit the collected data as evidence with the extent of its consequential influence upon the freedom of news report and with all other necessary considerations. Even when the use of the data as evidence in a criminal trial is considered to be inevitable, the regard should be paid lest the disadvantage to be suffered by news media should exceed the indispensable degree. Considering from the above-mentioned points of view, the object of the hearing in this "fushinpan-seikyu" case......that means the case of which the committing to a court for trial is applied by the complainant or accuser who is dissatisfied with the disposition made by a public prosecutor not to indict......is to clarify the fact of whether or not the offences of the abuse of their official authority and or the offences of the violence and mistreatment committed by special public officials were really committed by the police officers during the clash between police and students. At the present stage of the hearing, even the identifications of suspects and victims are difficult. Now that almost two years have passed since the occurrence of the case, any new testimony by uninterested people can not be expected to be obtained. Under these circumstances, therefore, these news-films taken by news media on the actual spots of the clash from a neutral standpoint have highly important evidential value and are considered to be almost essential for deciding
the criminality of the suspect. In addition, since the films are those which were prepared for broadcasting, including some which were already sent on the air, the disadvantage which news media have to suffer by submitting them as evidence does not relate to the freedom of news report itself, but only to the possible hindrance to the future news-gathering activity. Though this is not a trial itself but a hearing for the "fushinpan-seikyu" case as before explained, the disadvantage to this degree, even from the viewpoint that the function of news media should be highly esteemed, is still within the proper limits to be endured by them so as to expect the realization of a fair criminal justice for this case.
Furthermore, the Fukuoka District Court which issued this order has pronounced that it is prepared, lest news media shall be interfered with their use of the films, to take the appropriate measure such as a timely provisional restoration and so on after the films are seized. When we take into consideration the above-mentioned various points and all other relevant matters together, we conclude that it was really inevitable that the court issued the order demanding to submit those for the purpose of
using them as evidence in the hearing of this "fushinpan-seikyu" case. From all these above-mentioned points of view, the order demanding to submit the films in this case is neither repugnant to Article 21 of the Constitution nor even to the purport of it. Therefore, the ruling of the court below which affirmed the order is proper and the contention of the appellants is not well-founded. Concerning the second reason of the supplementary reasons submitted by Attorney Akira Senoo and other two Attorneys for the appellants:
Though a violation of Article 32 of the Constitution is alleged, the contention is in substance no more than that of a violation of the procedural code not amounting to a lawful ground for a special Kokoku appeal.
Accordingly, pursuant to Article 434 and paragraph 1, Article 426, of the Code of Criminal Procedure this Court renders as stated in the "Main Text" with the unanimous concurrence of all the judges.
November 26, 1969
The Grand Bench, Supreme Court of Japan
Presiding Judge
Justice Kazuto Ishida
Justice Toshio Irie
Justice Asanosuke Kusaka
Justice Kingo Osabe
Justice Yoshihiko Kido
Justice Jiro Tanaka
Justice Jiro Matsuda
Justice Makoto Iwata
Justice Kazuo Shimomura
Justice Kotaro Irokawa
Justice Ken-ichiro Osumi
Justice Masao Matsumoto
Justice Yoshimi Iimura
Justice Tomokazu Murakami
Justice Kosato Sekine
REFERENCE
THE CONSTITUTION OF JAPAN
Article 21. Freedom of assembly and association as well as speech, press
and all other forms of expression are guaranteed.
2. No censorship shall be maintained, nor shall the secrecy of any means of communication be violated.
THE CODE OF CRIMINAL PROCEDURE (Law No. 131 of 1948)
(Articles related to Kokoku Appeal)
Article 434. The provisions of Articles 423, 424 and 426 shall apply mutatis mutandis to the Kokoku appeal mentioned in Paragraph 1 of the preceding Article, except as otherwise provided in this Code.
Article 423. Kokoku appeal shall be filed by presenting a written application to the original court.
2. When the original court finds the Kokoku appeal to be well-founded, it shall correct error in the ruling. If it finds the whole or a part of the Kokoku appeal to be groundless, it shall send the written application with the written opinions attached thereto to the court of Kokoku appeal within three days after the day when it received the application.
Article 424. With the exception of immediate Kokoku appeal, Kokoku appeal shall not have the effect of suspending the execution of the decision. However, the original court may, by means of a ruling, suspend the execution until the Kokoku appeal will have been adjudicated upon.
2. The court of Kokoku appeal may suspend the execution of the decision by means of a ruling.
Article 426. In the event of a Kokoku appeal having been made in a manner contrary to the provisions governing it, or if a Kokoku appeal is without ground it shall be dismissed by means of a ruling.
2. Should the Kokoku appeal be well-founded, the original ruling shall be cancelled by means of a ruling and, if necessary, a decision rendered anew.
Article 433. Against a ruling or order to which no objection is allowed in this Code, a Kokoku appeal may be filed to the Supreme Court only on the ground that there exists a reason provided in Article 405.
Article 405. Jokoku appeal may be lodged against a judgment in first or second instance rendered by a High Court in the following cases:
(1)
On the ground that there is a violation of the Constitution or an error in construction, interpretation or application of the Constitution;
(2)
On the ground that a judgment has been formed incompatible with the judicial precedents formerly established by the Supreme Court;
(3)
In cases for which there exist on judicial precedents of the Supreme Court, on the ground that a judgment has been formed incompatible with the judicial precedents formerly established by the former Supreme Court (Dai Shin In) or by the High Court as the Court of Jokoku appeal or, after the enforcement of this Code, by the High Court as the court of Koso appeal.
(Article related to order demanding to submit articles)
Article 99. When it is necessary, a court may seize any articles which, it believes, should be used as evidence, or liable to confiscation, except as otherwise provided in this and other laws.
2. A court may designate articles to be seized and order the owner, possessor or custodian thereof to produce such articles.
(Articles related to demand not to prosecute)
Article 262. If, in a case with respect to which complaint or accusation is made concerning the offenses mentioned in Articles 193 to 196 of the Penal Code or Article 45 of the Subversive Activities Prevention Law (Law No. 240 of 1952) , the complainant or accuser is dissatisfied with the disposition made by a public prosecutor not to prosecute, he may apply to a District Court having jurisdiction over the place of the public prosecutor's office to which that public prosecutor belongs for committing the case to a court for trial.
2. The application mentioned in the preceding paragraph shall be made by submitting a written application to a public prosecutor who made the disposition not to prosecute, within seven days from the day on which notice mentioned in Article 260 was received.
Article 263. The application mentioned in Paragraph 1 of the preceding Article may be withdrawn before the ruling of Article 262 is rendered.
2. The person who made the withdrawal as provided in the preceding paragraph shall not make anew the application mentioned in Paragraph 1 of the preceding Article in respect to the same case.
Article 264. A public prosecutor shall institute prosecution if he considers the application mentioned in Paragraph 1 of Article 262 well-founded.
Article 265. Trial and decision on the application mentioned in Paragraph 1 of Article 262 shall be conducted and delivered by a collegiate court.
2. The court may, if it deems necessary, cause a member of a collegiate court to investigate the fact, or requisition a judge of a District or Summary Court to do so. In this case a commissioned judge or a requisitioned judge shall have the same authority as the court or a presiding judge has.
Article 266. On receipt of the application mentioned in Paragraph 1 of Article 262, a court shall render a ruling according to the following classification:
(1)
In the event of the application having been made contrary to the form fixed by law or ordinance or after the right of application has extinguished or of its being without grounds, it shall be dismissed;
(2)
If the application is well-founded, the case shall be committed to a competent District Court for trial.
Article 267. When the ruling mentioned in Item (2) of the preceding Article has been rendered, prosecution shall be deemed to have been instituted on the case. Article 268. When a case has been committed to it for trial in accordance with the provisions of Article 266, Item (2), the court shall designate from among practicing attorneys one who shall sustain the prosecution on such case.
2. The practicing attorney designated as mentioned in the preceding paragraph shall exercise the functions of a public prosecutor in order to sustain the prosecution until the decision has become final. However, the practicing attorney mentioned in the preceding paragraph shall commission a public prosecutor to direct public prosecutor's assistant officer or judicial police official for criminal investigation.
3. The practicing attorney who exercises the functions of a public prosecutor in accordance with the preceding paragraph shall be deemed to be an official engaged in the public service in accordance with laws or ordinances.
4. A court may cancel the designation of the practicing attorney designated in accordance with the first paragraph at any time if it finds that he is not qualified to exercise his functions or there are any other special circumstances.
5. The practicing attorney designated in accordance with the first paragraph shall be given allowances as fixed by cabinet order.
THE PENAL CODE (Law No. 45 of 1907)
Article 193 (Abuse of Authority by Public Officer) When a public officer abuses his authority and causes a person to perform an act which he has no obligation to perform, or obstructs a person from exercising a right which he is entitled to exercise, imprisonment at forced labor or imprisonment for not more than two years shall be imposed.
Article 194. (Abuse of Authority by Special Public Officer) When a person performing or assisting in judicial, prosecutive or police functions abuses his authority and arrests or imprisons another, imprisonment at forced labor or imprisonment for not less than six months nor more than 10 years shall be imposed.
Article 195. (Violence and Mistreatment of Special Public Officials) When a person performing or assisting in judicial, prosecutive or police activities, in the performance of his duties, commits an act of violence or cruelty against the defendant in a criminal action or against another person, imprisonment at forced labor or imprisonment for not more than seven years shall be imposed.
2. The same applies when a person who is guarding or escorting another confined in accordance with law or ordinance commits an act of violence or cruelty against him.
Article 196. (Consequential Aggravation) A person who commits a crime provided in the preceding two Articles and thereby kills or injures another shall be subject to the punishments provided for the crimes of bodily injury if they be graver.
3. Date of the judgment1969.12.24
Case number1965(A)No.1187
Judgment on legality of photography by an investigation team
Reporter: Keishu Vol.23, No.12, at 1625
Title: Judgment on legality of photography by an investigation team
Decision classification: Judgment
Result: Dismissed
Original Court: Osaka High Court
Type of court, decision: Grand Bench, judgment
Summary
1) Ordinance No. 10 of 1954 of the City of Kyoto, "Ordinance relating to assemblies, group processions and group demonstrations", does not contravene Article 21 of the Constitution.
2) Every person shall have the freedom not to have their appearance and person photographed without their permission, and a police officer shall not be permitted to photograph the appearance, etc., of an individual without just cause since such an act shall constitute a violation of the purport of Article 13 of the Constitution.
3) Photography of the appearance, etc., of an individual by a police officer without permission of the person being photographed or without a court warrant does not infringe Articles 13 and 35 of the Constitution if it is done under the conditions when a crime is actually being committed or shortly after it has been committed, in the case where photography is needed urgently in order to obtain evidence, and if it occurs employing an appropriate method which does not go beyond the limits conventionally regarded as acceptable.
4. Date of the Judgment1969.6.25
Case Number1966(A)No.2472
Judgment upon case of defamation
Decided on June 25, 1969
Case Number (A) No. 2472 of 1966
JUDGMENT
The Accused:
Name:Katsuyoshi Kawachi
Whereas a Jokoku appeal has been lodged by the above-named accused against the judgment pronounced by the Osaka High Court on October 7, 1966 in the case charging him with defamation, this Court renders the following judgment:
MAIN TEXT
The judgment of the court below and that of the court of first instance shall be reversed.
This case shall be remanded to the Wakayama District Court.
REASONS
As all the grounds of appeal submitted by Attorneys Atsushi Hashimoto and Shigeru Hosomi, including the one of alleged violation of Article 21 of the Constitution, are in substance no more than contentions of incorrectness in the construction and application of law, none of them amount to lawful grounds of a Jokoku appeal.
This Court, however, examines the case ex officio in view of the submissions. The gist of the facts constituting the offence indicated in the judgment of the court of first instance, and being affirmed by the court below is:
"The accused published in his paper 'The Yukan Wakayama Jiji' dated February 18, 1963 a news under the headline 'Wicked Acts of Tokuichiro Sakaguchi, the Blood-sucker' to the effect that Tokuichiro Sakaguchi, the proprietor of the Wakayama Tokudane Shimbun, or his subordinate under his instructions had given to a certain section chief in the Public Works Department of the Wakayama City Office within hearing of others a parting threat, 'If you made a due offer, we should shut our eyes to your deed.
But as you are quite niggardly, you know what we shall do', and had threatened a certain higher superintendent of the City Office by making a remark, 'A tender feeling always finds a ready response, they say. Well, my boy, you are suspected of corruption, too. Shall we settle the matter over a glass in a proper place?' Wherewith the accused defamed Sakaguchi by alleging these facts in public."
The court of first instance applied in its judgment Paragraph 1 of Article 230 of the Penal Code to the above-mentioned facts and pronounced the accused guilty.
The attorneys in the court below contended, "Mens rea of defamation is negatived in the light of the fact that he believed in the existence of the facts he published on such information and grounds as to enable him to prove it. And the accused is not guilty " The court below rejected the contention in its judgment, saying, "It is the purport of the Decision of the Supreme Court (Decision of the 1st Petty Bench, May 7, 1969, Supreme Court Criminal Report Vol. 13, No. 5, p. 641) that the accused is not entitled to be exempted from criminal liability for defamation, notwithstanding his mistaken belief in the existence of the facts so long as it is not proved", and held that the accused could not be exempted from criminal liability for defamation, even if there had been good reason for this mistaken belief in the existence of the facts.
It should be observed, however, that Article 230-2 of the Penal Code has been enacted to reconcile the personal security to honor of an individual and the freedom of speech provided for in Article 21 of the Constitution. Giving thought to the reconciliation and balance of these two interests, it should be construed that, even if there is no proof of the existence of the facts under Paragraph 1 of Article 230-2 of the Penal Code, no crime of defamation was committed because of the absence of mens rea, when the publisher believed mistakenly in the existence of the facts and there was good reason for his mistaken belief on the basis of reliable information and grounds. We are of the opinion that the Decision of the Petty Bench of this Court (Decision of the 1st Petty Bench, May 7, 1959, Case Number (A)
No. 2698 of 1958, Supreme Court Criminal Report Vol. 13 No. 5, p. 641) diverging from this construction and holding that the accused is not entitled to be exempted from criminal liability for defamation notwithstanding such mistaken belief so long as the existence of the facts is not proved, should be overruled. It follows that the aforementioned holding in the judgment of the court below is incorrect in the construction and application of law.
While Sadayasu Yoshimura, a witness applied for by the defence, testified in relation to the count corresponding to the aforementioned facts found in the judgment of the court of first instance to the effect that he had got out of certain officials of the Wakayama City Office information as to the published news mentioned in the count and had given it to the accused, the prosecution raised an objection on the ground that it was hearsay. And the court of first instance, sustaining the objection, rendered a ruling to exclude the whole of the objected part of the testimony from the record and came to the aforementioned judgment of the conviction of the accused, holding that the truth of the content of the news was not proved and that it could not be found that there had been good reason for the accused's belief in its truth. This judgment was affirmed by the court below.
In the light of happenings in the trial such as the attorneys' submission to the effect that the accused was entitled to be acquitted under Article 230-2 of the Penal Code as the act had been done of necessity with good motive for the public benefit, and their application for the examination of Sadayasu Yoshimura as a witness in relation to the aforementioned count, and the ruling of the court of first instance adopting him without
any restriction as to the facts to be proved and so on, it should be understood that the issue of the existence of good reason for the accused's mistaken belief in the truth of the content of the news was also included among the facts to be proved by Yoshimura.
Since the aforementioned part of Yoshimura's testimony which the court of first instance excluded cannot be said to be hearsay in proving the fact that there had been good reason for the accused's mistaken belief in the truth of the content of the news, though hearsay in proving the truth of the content of the article, it must be said that the court of first instance was illegal in misconstruing the law as to meaning of hearsay and in excluding the evidence which should not have been excluded. And the judgment of the court below affirming it was also illegal in misconstruing the law and in not examining sufficient evidence. The problem whether there is exemption under Paragraph 1 of Article 230-2 or not should have been decided in the present case upon careful examination of the factual problem whether there had been good reason for the accused's mistaken belief in the truth of the content of the news on the basis of reliable information and grounds. The illegalities of the court below misconstruing the law and omitting the decision of the just mentioned problems are material to the judgment. It is incompatible with justice not to reverse the judgment.
Therefore, according to Item 1 of Article 411 of the Code of Criminal Procedure, this Court reverses the judgment of the court below and that of the court of first instance and remands the case to the Wakayama District Court for further proceedings.
This judgment is rendered by unanimous opinions of all the justices of this Court. In the presence of the Public Procurator Hiizu Hiraide. June 25 1969
The Grand Bench, Supreme Court of Japan
Presiding Judge,Justice Kazuto Ishida
Justice Toshio Irie
Justice Kingo Osabe
Justice Yoshihiko Kido
Justice Jiro Tanaka
Justice Jiro Matsuda
Justice Makoto Iwata
Justice Kazuo Shimomura
Justice Kotaro Irokawa
Justice Ken-ichiro Osumi
Justice Masao Matsumoto
Justice Yoshimi Iimura
Justice Tomokazu Murakami
Justice Kosato Sekine
REFERENCE
THE CONSTITUTION OF JAPAN
Article 21 Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed.
2. No censorship shall be maintained, nor shall the secrecy of any means of communication be violated.
THE PENAL CODE (Law No.45 or 1907)
Article 230-1 (Defamation) A person who defames another by publicly alleging facts shall, regardless of whether such facts are true or false, be punished with imprisonment at forced labor or imprisonment for not more than three years or a fine of not more than 1,000 yen.
2. A person who defames a dead person shall not be punished unless based on a falsehood.
Article 230-2 (Proof of Fact) When the act provided in paragraph 1 of the preceding Article is found to have been committed solely for the benefit of the public and regarding matters of public concern and when, upon inquiry into the truth or falsity of the facts, the truth is proved, punishment shall not be imposed.
2. In the application of the provisions of the preceding paragraph, matters concerning the criminal act of a person for which a prosecution has not yet been instituted shall be deemed to be matters of public concern.
3. When the act provided in paragraph 1 of the preceding Article is committed in regard to matters concerning a public servant or a candidate for elective public office, and when, upon inquiry into the truth or falsity of facts, the truth is proved, punishment shall not be imposed.
THE CODE OF CRIMINAL PROCEDURE (Law No. 131 of 1948) Article 411 Even where there exists no ground as prescribed by any one of the Items in Article 405, if the court of Jokoku appeal deems it incompatible with justice not to quash the original judgment because of the existence of the following causes, it may quash it by means of a judgment:
(1)
When there exists any mistake of construction, interpretation or application of law or ordinance which is material to the judgment;
(2)
When the punishment has been imposed too unjustly and improperly;
(3)
When there exists a gross error in finding facts which is material to the judgment;
(4)
When there exists any reason which would support reopening of procedure (Saishin);
(5)
When the punishment has been abolished or changed or a general amnesty has been proclaimed after the rendition of the original judgment. Article 405 Jokoku appeal may be lodged against a judgment in first or second instance rendered by a High Court in the following cases:
(1)
On the ground that there is a violation of the Constitution or an error in construction, interpretation or application of the Constitution;
(2)
On the ground that a judgment has been formed incompatible with the judicial precedents formerly established by the Supreme Court;
(3)
In cases for which there exist on judicial precedents of the Supreme Court, on the ground that a judgment has been formed incompatible with the judicial precedents formerly established by the former Supreme Court (Dai Shin In) or by the High Court as the Court of Jokoku appeal or, after the enforcement of this Code, by the High Court as the court of Koso appeal.
Article 13 When the original judgment is to be quashed on any ground other than the grounds mentioned in the preceding Article, the case shall be either sent back to the original court or the court of first instance, or transferred to another court in the same class as these courts, by means of a judgment. However, if the court of Jokoku appeal recognizes that it may immediately render a judgment on the basis of record and evidences already made and examined by the original court or court of first instance, it may render the judgment for the case. Article 412 When the original judgment is to be quashed on the ground that the court illegally considered itself competent, the case shall, by means of a judgment, be transferred to the competent court of Koso appeal or competent court of first instance.
- statements of “good practices” implemented at national level with a view to improving relations between justice and the media.
There is no statement, etc. to improve relations between the judiciary and the media.
D1
Judgments are recognized in general as what is described below, and the Legal Training and Research Institute which is a training institution of courts is conducting its education based on the following recognitions. In addition, new forms of court decisions have been proposed and established and thus the necessity to make judgment document easy to understand is widely recognized.
In making a draft of judgments, the purposes of the judgment document should always be kept in mind. The followings could be the purposes:
(1) For the litigant, to inform the content of the judgment and give him/her the opportunity to consider whether or not to appeal.
(2) For superior courts, to clarify on what fact and under what reasons the decision was made for their reexamination on the case.
(3) For the general public, to clarify the content of laws through specific cases and to guarantee the court's fairness by showing the court's decision and its procedure.
(4) For the judge himself/herself who made the decision, to make it possible to view his/her thoughts and judgment objectively. In other words, by preparing a judgment document, the judge can have an opportunity to reexamine whether the litigant's assertion of the facts was sufficient, whether there was inconsistency, what the point of controversy is, whether proof on the point of controversy is enough, and whether there is a mistake in applying interpretations of laws, and the judge as a result can maintain accuracy of the judgment. In addition, this causes the judge to reflect on the development of proceedings he/she has conducted so that the judge can have the opportunity to reconsider whether it was acceptable.
No one would disagree that (1) is the one to give first priority for these purposes. If the most important and fundamental point is that that the judgment document is for the parties, it should be easy to understand. Furthermore, the most important point for judgment document is correct judgment. Even if the appearance was good, it is meaningless if there was disregard for the important point of controversy or a mistake in the conclusion. It is necessary for a judgment document to enhance its substantial content and there is rational reason for omitting the part that is just for formality.
D2
There is no relevant information.