Scholars which lead to the delays – “The simplest

Scholars on Japanese law and society have different attitudes towards nonlitigiousness
of Japanese people.1 The
core of this Report is exclusively Professor John Haley’s point of view, who
supports institutional model.2
Haley in his article in 1978 – “The myth of the reluctant litigant” clearly
pointed that the slow, understaffed courts create the conditions to discourage
Japanese litigation and people are not nonlitigious at all. Consequence is
overcrowded courts coupled with recurring hearing which lead to the delays –
“The simplest trial can take over a year at the district court level, and the
average is two years”.3
As for lawyers, Haley argues that shortage of them follows from utterly severe
examination system. Thus, under the criticism of Haley comes both the civil
litigation system and bar examination of Japan. In the following paragraphs I will
analyze the issues exclusively with the civil justice and lack of lawyers in
Japan from the standpoint of the reforms, triggered after 1990s and try to make
it clear whether these amendments improved the situation criticized by Haley or
the condition is still the same.

First, consider it necessary to examine the civil litigation system. Haley
specifies several reasons, which negatively impact the litigation in Japan.4
The causes are the lack of legal awareness in the society, challenge of access
to the courts together with limited institutional capacity and inadequate range
of remedies as well as weak power to enforce judges’ decisions. Haley leaves
the issue with the lack of legal information and moves to more important, as he
asserts, problem of courts’ capacity. In overall, although the population has
grown, the number of judges experienced slight increase, but not enough
comparatively to the population. Haley gives the data, showing that over the
period from 1950 to 1973 the number of judges increased from 2261 to only 2688.
As for the length of litigation, Haley presents the table, evidencing that over
the period from filling in court of first instance to decision in district
courts, the consideration took more than 12 month on the average in 1960, 1965
and 1970. Next, Haley moves to the remedies and decisions of judges, arguing
that courts build their activity on remedies provided exclusively by the
statutes and, in most of the cases, this condition is effective due to the
voluntary concurrence. Finally, concerning the contempt power, it is pointed
that in order to enforce their decisions courts have to depend on other
institutions, for instance, prosecutors.

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Moving to the
reformation of civil litigation system, which took place after 1990s, it is
worth to point that the reform was aimed to face significant alterations, to
enhance and accelerate the whole civil justice. Thus, Japanese Code of
Civil Procedure experienced the total revision in 1996 and a new Code called the Code of Civil Procedure (the
CCP), was enacted.5 The
new Code, as Professor Masahisa Deguchi asserts, was adopted due to the three
main reasons – changes in the Japanese society, slow trials and the need of
essential modification of Civil Procedural Law.6

Afterwards, the government initiated judicial reform
discussions and in 1999 the Justice System Reform Council (JSRC) was
established.7 The
JSRC presented the suggestions on improving the current justice system after
two years on June 12, 2001, pointing also the significance on amending the
civil litigation sphere.8
The agenda of the JSRC was the realization of a
more accessible and user-friendly justice system, public participation in the
justice system, redefinition of the legal profession and reinforcement of its
function. The major part of the Recommendations of the JSRC consists of five chapters
and the first provides the suggestions on the civil litigation. The JSRC
stated that the following issues need to be reconsidered
in relation to the civil justice system from the standpoint of effective
judicial improvement.

Firstly, JSRC pointed the importance to reinforce and
speed up civil trials. For all cases,
therefore, it is essential to establish a compulsory proceeding plan. At
an early stage in the proceedings, a proceeding plan should be fixed, based
upon conferrals by the court and by both parties, containing an estimated time
for the conclusion of the proceedings. Besides, methods for parties
concerned to collect evidence at an early stage, including the period before
instituting a suit, should be expanded. At the time of adoption, it is
necessary to pay attention both to securing the rights of those who hold
evidence and to the danger of adverse effects through abuse of the new
measures. Also, in order to reduce the duration of proceedings for civil
cases by about half, while aiming at the reinforcement of proceedings, it is indispensable
to shorten the intervals between trial dates by expanding the human base of the
legal profession. For that purpose, the personnel system of the courts should
be reinforced by raising the number of judges and staff connected to the
courts. In addition to abovementioned reforms, JSRC proposed
that individualized
attention to the nature of the expertise involved for each category of cases,
to the manner in which new systems for expert participation in litigation
should be introduced, where non-lawyer experts in each specialized field become
involved in all or part of trials. If
suitable cooperation by experts cannot be obtained at civil actions related to
these disputes, it seems to be impossible to come to a proper judgment and, therefore,
procedures can be delayed.

Secondly, JSRC devoted attention also to specific
fields. In the intellectual property rights cases, for example, it was
mentioned that processing system of specialized departments at both
the Tokyo and Osaka
District Courts shall be further reinforced so that those departments function substantially as
patent courts. In labor cases, labor conciliation, should be introduced as a special type of civil
conciliation. As for family-related cases, they should be transferred to the
jurisdiction of family courts, and the system should be improved by introducing
a court councilor system for divorce actions. The JSRC also stated the
necessity to improve the civil execution system, alternative dispute resolution
mechanisms, light the cost burden on users and so on.

Last point indispensable to
mention is the issue with the number of judges. JSRC suggested to establish a
system in which appointment of lawyers, public prosecutors and others as judges
can become real. In appointing such a
legal professionals as judges it is important, therefore, to ensure that they
have experience within the judiciary, such as, for instance, as assistant
judges or law clerks.

The dramatic alterations of the civil justice in Japan, led to some
positive outcome. As mentioned above, Haley argued on three points, impeding
Japanese litigiousness – insufficient awareness of legal norms, understaffed
courts, leading to long trials and inadequate relief, but made accent only on
the last two arguments, maybe consenting that the first point is not such a
problem. The reformation of the civil justice was aimed mainly on the issue of
slow consideration of cases and partly reviewing the remedies and execution
system from the standpoint of speeding up the proceedings – the third point, criticized
by Haley. Etsuko Sugiyama, analyzing the civil procedure of Japan, shows the
table, representing the number of judges in Japan after the reforms.9
In 2005 there were 2460 judges and the number increased only to 2994 judges in
2014. The figures are relatively the same, comparing to those analyzed by
Haley, but the population in Japan, increased by almost 20 million people from
1973 up to 2014.10 Thus,
the situation with the problem of understaffed courts still seems to be the
same. As for the length of trials, the process was slightly sped up. Eric
Feldman, making research on medical malpractice litigation in Japan, adduces
the data on the civil litigation after its reformation.11
The data decreases gradually to 7.8 months in 2006 on the average to consider
the case in contrast to 12.8 months in 1970 in Haley’s research. Therefore,
since the Haley’s research, the average litigation time dropped by about 5
month and, from that standpoint, the issue criticized by Haley has been
positively transformed.

Second issue coming under the examination is the problem of the lack of
lawyers due to the arduous bar examination. Haley analyzes the correlation
between the number of actions filed in a particular year with the number of
lawyer per head in that year, including the delays from the previous year.12
The research leads scholar to the evident lack of lawyers in Japan – in 1973, for
example, there were only 92 private attorneys per 1 million persons. Haley
points that the lack of lawyers is governmental policy, owing to difficult examination
system they cannot achieve the opportunity to become lawyers. In the postwar
system of legal education, all the members from the legal profession were to
pass the apprenticeship under the Legal Training and Research Institute and to
enter there, one had to undergo the national law examination. Haley shows the
table, reflecting that over the period from 1949 to 1975 the number of
applicants trying to pass the examination boomed tenfold, but those who pass
the examination increased only by approximately 200 persons. Thus, the passing
rate in Japan was only 1.7% in 1975, comparing to the USA, the rate was 74%,
but the will of people to work in the legal profession sphere was almost equal
both in Japan and the USA. The reason of the hindrance is the budgetary
limitation, as those who pass the examination afterwards have to complete the apprenticeship,
which include governmental scholarship and, therefore, the state cannot let
more persons to pass the national law examination. Hence, Haley’s position is
that the reason of the scarcity of lawyers is not the unattractiveness of legal
profession, conversely, this sphere becomes more inviting, but tough
governmental policy to the legal education, particularly difficult law
examination coupled with limited places for apprenticeship leads to the lack of
lawyers in Japan.

The reformation of the bar examination actively started to promote due
to the JSRC, which in third chapter of its Recommendations analyzed the issue
of lawyers’ scarcity.13
The aim which JSRC stated is 1500 successful candidates passing national bar
examination in 2004 and 3000 successful applicants in 2010, reaching the 50000
practicing legal professional in 2018. To achieve the result, there is the need
to establish a new legal training system, based not only on “single point” selection
via bar examination, but making the legal education a smooth process,
connecting national bar examination and legal training. Moreover, law schools
should be established starting from 2004 with the purpose to be the core
educational institutions to set up the human base indispensable for the justice
system admitting students from not only law faculties, but also other working
spheres.

As for bar
examination system, JSRC pointed that examination should become more suitable
to the new law school system. If the candidate completes the course at law
school, achieving the accreditation, he/she should be given the qualification
of candidacy for the national bar examination. Apprenticeship training also
should become more effective due to the increase in the number of apprentices.
Furthermore, the scholarship system also should be revised to loan system or
abolished at all in the future.

Scholars on
Japanese law and society skeptically concerning this part of the reform. Professors
Annelise Riles and Takashi
Uchida, for example, stated
that such a system makes law schools resort to cram school “to bring bar review
in house”, unnecessary focus on practical skills and divest time from legal
scholar to conduct research.14
Professor Kay-Wah Chan, in turn, expresses the concern regarding the quality
and ethics of lawyers due to significant increase in the profession’s number.15
Given apprehensions are urgent, but the core of the Report is to analyze the
reform from Haley’s standpoint, which argues on the scarcity of lawyers in
legal profession. It worth to mention that over the period from 1999 to 2018
the number of lawyers in Japan increased from fewer than 17,000 to more than 40,000.16 The figures make it clear that the mentioned reforms led to evident positive
effect from the standpoint of lack of lawyers. One can wonder, whether the new
law school system made the increase in lawyers come true? Starting from 2006,
the pace of lawyers’ reinforcement increases markedly. In 2004 is the first
year of the new law school system was adopted and sixty-eight new law schools
were ultimately accredited. In total, 5767 students were admitted to these law
schools in the first year.17 In turn, due to the White Paper on attorneys in Japan, in the first
year of new bar examination passed 1009 people, 1851 in 2007 and 2065 in 2008.
Comparing these figures with those analyzed by Haley, one can draw conclusion
that 2065 people in 2008 against 472 persons in 1975 passed the bar examination
makes it clear that new law school system promoted the increase in the population
of lawyers in Japan. However, over the next years up to nowadays, in overall,
the figures declined, but this way of creating lawyers is still better that
that used before the reform. Nevertheless, it worth to note, that though the
condition is better than that before reforms were triggered, the aim pointed by
JSRC has not been achieved – 1500 passing candidates in 2004 and neither 3000
candidates in 2010. The same is relevant to the 50,000 objective of
professional lawyers in 2018, as for now there are 40,069 practicing lawyers in
Japan.18 In overall, it can be stated, that over the period from Haley’s
analysis of the issue, there have been positive amendments towards solving the
issue with the lack of lawyers. Moreover, the system of governmental stipends
was also reconsidered. However, the aim, stated by the JSRC to overcome the scarcity
in legal profession is still on the agenda.

To conclude, there are different attitudes towards the reforms of the
civil justice and bar examination, but the quintessence is to look through the
reformations via Haley’s position, arguing that understaffed courts lead to delays
in litigation and state policy towards bar examinations result in lack of
lawyers. The amendments, starting from adopting new Code of Civil Procedure in 1996, Recommendations of JSRC and subsequent
alterations connected with the Recommendations brought to speeding up of the
civil litigation. Nevertheless, problem with understaffed courts is still of
high relevance. As the article in “The Japanese times” presents, there is the
strong need for further improvement of civil litigation as the number of judges
after reform has been increased only by approximately 600 members and this is “only the first of many steps that must
be taken”.19 As for bar examination, the reform experience
positive impact towards increase of lawyers in Japan, if we compare the figures
with those analyzed by Haley, but still the objective pointed by JSRC has not
been achieved.

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6 http://www.ritsumei.ac.jp/acd/cg/law/lex/rlr17/03deguchi.htm

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http://www.erasmuslawreview.nl/tijdschrift/ELR/2015/4/ELR-D-15-00025

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11 https://openscholarship.wustl.edu/cgi/viewcontent.cgi?referer=https://www.google.co.jp/&httpsredir=1&article=1077&context=law_globalstudies

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19 https://www.japantimes.co.jp/opinion/2013/11/20/editorials/reforms-needed-for-civil-litigation/#.WmNUQaiWY2x