Strasbourg, 8 February 2008

CCJE/REP(2008)23
English only

Consultative council of european judges (CCJE)

Questionnaire for 2008 ccje opinion concerning the quality of judicial decisions: Reply submitted by the delegation of Japan

Q1

There are no specific models to follow. However, a judicial decision will be drafted according to the applicable provisions of laws, if any, that specify the matters to be stated in a judicial decision (e.g., Article 253 of the Code of Civil Procedure).

Yes. However, many judges draft their decisions according to a widely-accepted style of drafting judicial documents with reference to published style guides.

Q2

Judicial decisions do not have to be made unanimously. A majority decision is equally effective and binding.

No. Each judge in a panel has the same voting power. Neither the president nor most senior judge has a casting vote.

Q3

(Civil cases)

When drafting a judgment, if the judge needs to make judicial decisions on some points of issue in order to provide reasonable grounds for the main text of the judgment, the judge must address all of those points in the written judgment, in principle. However, in the case of a summary court, the judge is required only to present a summary in a written judgment.

In the mean time, the points that must be covered in a written judicial decision differ depending on the type of the decision. In general, a written decision is only required to state the process of reaching the conclusion in a comprehensive and concise manner.

(Criminal cases)

The law requires the judge to state the grounds for his/her judicial decision. However, it is left to the discretion of the judge to decide how to describe the grounds and to what extent they should be disclosed. Needless to say, if a point raised is related to such matter as the legitimacy of self-defense or the existence or lack of criminal responsibility, the judge must state his/her view on the point because such matter could provide reasonable grounds to preclude the establishment of a criminal offense under law or to stiffen or reduce a punishment.

(Domestic relations cases and juvenile cases)

When drafting a judicial decision for a domestic relations case, the judge is required to state the main text of the judgment and the summary of the grounds for the decision (Article 16 of the Rules for Adjudication of Domestic Relations). However, it is not required to state all of the points raised by the litigants or their lawyers.

When drafting a judicial decision for a juvenile case, the judge is required by law to state his/her view on any assertion that could provide reasonable grounds to preclude the establishment of a criminal offense under law or to stiffen or reduce a punishment. The judge is not required to state his/her view on any other assertion. Such view is expected to be presented in the form of a brief description of the process of reaching the conclusion.

Q4

(Civil cases)

In general, a first-instance judgment for a civil case first states the “main text of the judgment,” followed by the “facts and grounds for the judgment.” The latter usually has three sections, i.e., “Claims,” “Outline of the case,” “Views of the court.” More specifically, in most cases: the section “Claims” states (1) the purposes of the claims. The section “Outline of the case” states (2) the outline of the dispute and the subject matter and (3) the agreed facts and the facts easily acceptable based on evidence, and (4) points of dispute and the relevant assertions of the litigants. The section “Views on the points of dispute” or “Views of the court” states (5) the facts accepted based on evidence, (6) the assessments thereof, and (7) conclusion (the result of applying laws to the accepted facts).

(Criminal cases)

In general, a first-instance judgment first states the “Defendant(s),” “Main text of the judgment,” etc., followed by “Grounds for the judgment,” and finally by the name of the court and judge. The section “Grounds for the judgment” states punishable facts, items of evidence, application of laws and rules, views on litigants’ assertions, and grounds for the sentence.

(Domestic relations cases and juvenile cases)

A judicial decision drafted in a domestic relations case is required to state the main text of the judgment and the summary of the grounds for the judgment (Article 16 of the Rules for Adjudication of Domestic Relations). While the matters that need to be stated vary depending on the type of the case, the judge is usually required to state in the section “Grounds for the judgment” the summary of the petition and the family court’s judgment thereon. The judgment usually consists of a brief description of the materials that were referred to in the fact-finding process (the results of investigations on facts and evidence), the facts found as a result, the judgment made with reference to those facts (the establishment or alteration of rights and legal relations), and the grounds for the judgment.

In the meantime, a judicial decision drafted in a juvenile case is required to state the main text of the judgment, the grounds for the judgment, the name, age, occupation, address, and place of registry of the juvenile (Article 2 of the Rules of Juvenile Trials). Any judge who decides to take a protective measure is required to state the punishable fact and the laws and rules applicable to the fact (Article 36 of said Rules). The judicial decision usually consists of three sections, which starts with a section about the outline of the facts, followed by a section on the application of laws and rules, and finally by the grounds for the sentence.

(Civil cases)

The way of drafting a second-instance civil judgment is the same as that for a first-instance civil judgment. The second-instance judgment may cite the facts or grounds stated in the first-instance judgment.

In general, the Supreme Court drafts a civil judgment by first stating the outline of the facts found by the court of the first instance. In order to reverse the judgment of the prior instance, the Supreme Court usually states the judgment of the prior instance after outlining those facts and then states the judgment of the Supreme Court.

The Japanese civil appeal system has adopted the principle of continuous proceedings, which allows the court of the second instance to hand down a judgment based on the materials referred to by the court of the first instance as well as on newly collected materials.

(Criminal cases)

A second-instance judgment and a third-instance judgment usually state in the section “Grounds for the judgment” the views of the court on the points asserted by the appellant as the purpose of the appeal.

In principle, an appeal includes oral proceedings.

(Domestic relations cases and juvenile cases)

A judicial decision made in an appeal or re-appeal against a ruling is required to state the main text of the judgment and the grounds for the judgment. It is up to the court of the appeal or re-appeal to decide whether to carry out oral proceedings.

Q5

(Civil cases and administrative cases)

Basically, no.

(Criminal cases)

In a criminal case, a judgment is drafted differently from a civil case, administrative case, etc. For instance, the court has to find facts based on evidence even if there is no disagreement about the facts. Furthermore, public prosecutors bear the burden of proof to prove the fact of a crime.

Q6

(Civil cases)

In principle, a judgment is transmitted at the court based on the original written judgment. In addition, the written judgment is served to the litigants.

In the meantime, a ruling and an order are considered to take effect upon delivery by appropriate means. In most cases, the court orally gives a ruling or an order in oral proceedings or serves a written ruling or order.

(Criminal cases)

In the case of a public trial, a judicial decision is pronounced at the court. In any other case, a transcript of a notice of judicial decision is served. However, a judgment must be pronounced in open court.

(Domestic relations cases and juvenile cases)

The judicial decision of a domestic relations case is required to be announced by a means that is considered appropriate by the court (Article 7 of the Domestic Relations Act and Article 18 of the Non-Contentious Cases Procedure Act). Such means include (1) oral transmission, (2) personal service by a clerk, (3) service by mail, a court enforcement officer, or an usher, (4) service by registered mail, (5) service by publication, and (6) delivery by ordinary mail. The court chooses the one of these means that best suits the nature of the case and circumstances.

The judicial decision of a juvenile case is transmitted by oral transmission on the trial date, by oral transmission directly to the juvenile, or in any other manner considered appropriate. The court chooses the one of these means that best suits the type of the decision. If the court decides to take a protective measure, the court is required to transmit the decision by any of these means and provide the juvenile and his/her guardian with a detailed explanation on the purpose of the protective measure in order to deepen their understanding. In addition, the court is required to inform them that they have the right to appeal.

(Civil cases)

In a civil case, the judicial decision is binding only on the litigants in principle.

(Criminal cases)

In a criminal case, the judicial decision is binding only on the litigants.

(Administrative cases)

In an administrative case, if the court decides to reverse an administrative disposition or a determination, the judicial decision will be binding on the administrative agency that has made the administrative disposition or a determination and other related agencies and will affect third parties as well (Article 32, para.1 and Article 33, para.1 of the Administrative Case Litigation Act).

(Domestic relations cases and juvenile cases)

In the case of a domestic relations case, the judgment is binding only on the litigants. However, it is interpreted that any judgment creating a new legal relation has a legal effect erga omnes and that third parties must recognize the effect.

In a juvenile case, the judgment is binding only on the juvenile in question.

(Civil cases)

In Japan, action in rem is not instituted.

(Criminal cases)

In Japan, criminal proceedings are carried out to judge whether the punitive authority against the defendant exists or not. Therefore, action in rem is not commenced.

Q7

(Civil cases)

A judicial decision is enforced by the court or a court enforcement officer according to the nature of the purpose. For example, if the court orders the transfer of an object, a court enforcement officer will seize the object from the debtor and transfer it to the creditor.

Japan has no contempt proceedings against a litigant who does not comply with an order or a decision of the court. However, in the case of the enforcement of a court order for the debtor’s performance or nonperformance of a certain act, the court may order the debtor to pay the creditor a certain amount of money calculated based on the length of time before the debtor complies with the order.

(Criminal cases)

A judicial decision is enforced under the supervision of prosecutors.

The court may penalize any person who has disregarded or disobeyed a court order designed to maintain order in the court or who has interfered with the court proceedings by use of abusive language, physical violence, etc.

(Domestic relations cases and juvenile cases)

In a domestic relations case, a judgment that orders the payment of money, the transfer of an article, the performance of the registration obligation, and the implementation of any other obligation is considered to have the same effect as an enforceable bill of debt (Article 15 of the Rules for Adjudication of Domestic Relations. The judgment is enforceable under the provisions of the Civil Execution Act). If any person fails to make the monetary payment prescribed in a judgment or to fulfill any other financial obligation, the family court may, upon receipt of a request from the creditor, order the debtor to satisfy the obligation within a reasonable period of time (Article 15-6 of the Rules for Adjudication of Domestic Relations). If the debtor fails to obey the order without a legitimate reason, the debtor shall be subject to a fine (Article 28 of the Rules for Adjudication of Domestic Relations.

In a juvenile case, if the family court makes a judicial decision that needs to be enforced, the family court judge who has made the decision must supervise the enforcement.

In Japan, there are no proceedings of contempt of court.

Q8

(Civil cases)

A judgment must be handed down in open court under Article 82 of the Constitution. The court can not exclude the public and journalists from open court.

On the other hand, in most cases, a ruling and an order are not handed down or announced in open court because they take effect upon notification by such means as considered appropriate under Article 119 of the Code of Civil Procedure.

(Criminal cases)

The Constitution and the Code of Criminal Procedure specify that a judgment must be announced in open court and shall not be handed down in chambers. On the other hand, a ruling and an order may be notified outside of open court by serving a transcript of a notice of judicial decision and other documents.

(Domestic relations cases and juvenile cases)

The proceedings of a domestic relations case and a juvenile case are not open to the public, in principle. Therefore, neither judgments nor rulings are handed down in public.

Q9

(Civil cases)

In most cases, despite the existence of the Act on the Protection of Personal Information, a written judicial decision states the names of litigants and other personal information as long as it is necessary to describe the decisions. However, special consideration is given to the way of drafting a judicial decision so as not to disclose highly confidential personal information. If there is a risk that the disclosure of highly-confidential information about a litigant’s personal life in a written judicial decision could allow third parties to read the confidential information when inspecting the written decision and could, as a result, make it extremely difficult for the litigant to lead a normal social life, the court may prohibit any person other than the litigants from requesting inspection of the part of the decision that contains the confidential information.

(Criminal cases)

When pronouncing a judgment, the court may, at its discretion, take measures to protect privacy such as handing down a judgment without revealing the personal information of the juvenile defendant and the victim.

(Domestic relations cases and juvenile cases)

In principle, the proceedings of a domestic relations case are not open to the public (Article 6 of the Rules for Adjudication of Domestic Relations). If a party to the case requests the disclosure of a juvenile case report, the family court may permit inspection or duplication of the juvenile case report if it considers such disclosure appropriate (Article 12 of the Rules for Adjudication of Domestic Relations).

Since the proceedings of a juvenile case are not open to the public, the names of litigants and other personal information are not disclosed to the public.

Q10

(Civil cases)

Any person may request inspection of a written judicial decision included in the civil case record. Any third party who proves himself/herself as an interested party may request the duplication or the grant of a transcript of the record of trial.

(Criminal cases)

Any person may inspect a case report including a judgment after the finalization of the judgment. Even before a case is finalized, the victim may inspect and copy the record of trial including the judgment.

(Domestic relations cases and juvenile cases)

In principle, in a domestic relations case, a written judgment is available only to the parties to the case. However, if the court receives a request for disclosure of the judgment, the court may give a copy of the judgment to the administrative agency or a public entity that requests the disclosure of the judgment if the court finds the need for the disclosure of the judgment for the benefit of the public to outweigh the need for protection of the confidentiality of the domestic relations case.

Similarly, in a juvenile case, a judgment is available only to the parties to the case. However, the judgment may be disclosed if the family court finds that the need for disclosure of the judgment for the benefit of the public outweighs the need for protection of the confidentiality of the juvenile case.

Q11

Information on judicial decisions is available on the website. The information includes recent major Supreme Court decisions, decisions recorded in the Collection of Supreme Court Decisions of Civil and Criminal Actions and the Collection of High Court Decisions of Civil and Criminal Actions. Furthermore, in an effort to inform the public of important judicial decisions as soon as possible, some decisions of major lower courts for civil and criminal cases are also publicized.

(Civil cases)

Not all judicial decisions are available to the public. For example, some judicial decisions made in Supreme Court cases are publicized in the form of casebooks and on the website. In addition, some judicial decisions made in appeals and first-instance cases are available on the website. Some judicial decisions are publicized in a journal published by a private company regardless of the instance of the case where those decisions were made.

(Criminal cases)

Some judicial decisions are publicized in some publications. Before the publication, the personal information of the litigants must be removed. Cases other than appellate instances are also subject to publication.

(Domestic relations cases and juvenile cases)

In principle, in a domestic relations case and a juvenile case, no judicial decisions such as judgments and rulings are made available to the public. However, a judgment that sets a precedent may be publicized in a casebook. Before the publication, necessary alterations must be made to protect personal information such as replacing real names with fictitious names.

Q12

Yes.

Q13

Each judge is evaluated based not on whether his/her final judicial decisions were appropriate or not. However, how he/she has handled the cases to reach the decisions is taken into consideration.

Q14

Rules for Personnel Evaluation of Judges were established (January 7, 2004, Supreme Court Rule No.1) for the personnel evaluation of judges.

The head of a court is in charge of making personnel evaluation of the judges belonging to the court.

A personal evaluation is made on such parameters as the ability to effectively handle cases, the ability to appropriately manage a department and other groups of people, and the general qualifications and abilities necessary to carry out the job responsibilities of a judge (For further information on evaluation parameters, please refer to the attached document.).

An evaluator evaluates each judge by conducting an interview with him/her after receiving a report on the current state of his/her work. The evaluator is responsible for creating an evaluation report by describing the qualifications and abilities that fall under each of the evaluation parameters.

In order to make a precise personnel evaluation of a judge, the evaluator is expected to make efforts to gather diverse information from various sources, i.e., not only in the court but also outside the court.

Q15

First of all, in order to make an accurate personnel evaluation of a judge, the evaluator is expected to make efforts to gather diverse information from various sources in such a way that would not violate the independence of the judge. The evaluator pays attention not only to the information available within the court but also to the information obtained outside the court. The evaluator conducts an interview with the judge after receiving a report on the current state of his/her work from him/her. We have established systems to disclose an evaluation report and to file complaints about the evaluation. These systems allow two-way personnel evaluations. As a result, most judges consider the evaluation results as appropriate. Our evaluation system is useful for each judge to learn from his/her past job performance to improve future work.

None.

Q16

In order to improve the quality of judicial decisions, each judge needs to enhance the qualifications and abilities necessary for his/her job through day-to-day handling of cases and self-development. In addition, judges are given opportunities to participate in various training programs at the Legal Training and Research Institute in order to supplement the self-study.

Q17

NO

Evaluation Parameters and Evaluated Abilities

1. The qualifications and abilities necessary to appropriately handle cases (The ability to handle cases)

    * Knowledge on laws and the qualifications and abilities necessary to make appropriate judicial decisions (The ability to make appropriate judicial decisions)

      - Correct and sufficient knowledge

      - The ability to understand, analyze, identify, and creatively solve legal issues

      - The ability to appropriately assess evidence

      - The ability to appropriately express judicial decisions

      - The ability to form a judicial decision by conducting investigations and taking other necessary steps within a reasonable period of time, etc.

    * The qualifications and abilities necessary to effectively manage judicial procedures

      - The ability to supervise an oral argument procedure and other court procedures, etc.

      - The ability to communicate with litigants

      - The ability to smoothly carry out a series of court proceedings of which the judge is in charge

2. The qualifications and abilities to appropriately manage a department and other groups of people (The ability to manage organizations)

    - The ability to effectively manage a department or the court organization as a whole

    - The ability to lead the staff

    - The ability to appropriately deal with the staff, judges, etc.

3. The general qualifications and abilities necessary to carry out job responsibilities as a judge

    * General intelligence

      - A broad perspective based on a broad educational background

      - A deep insight into humanity

      - A correct understanding of social events

    * Personality and character

Morality, fairness, generosity, diligence, perseverance, self-control, decisiveness, discreetness, carefulness, mental flexibility, spirit of independence, moral courage, sense of responsibility, cooperativeness, positive attitude, etc.



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