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Japanese law was historically heavily influenced by Chinese law and developed independently during the Edo period through texts such as Kujikata Osadamegaki, but has been largely based on the civil law of Germany since the late 19th century.

Sources of law

Statutory law originates in the Diet of Japan with the rubber-stamp approval of the Emperor. Under the current constitution, the Emperor may not veto or otherwise refuse to approve a law passed by Diet.

Six Codes

The main body of Japanese statutory law is a collection called the Six Codes (六法 roppō). The six codes referred to are:

  1. the Civil Code of Japan (民法 Minpō, 1896) in five volumes (General Provisions, Rights, Claims, Families, and Inheritance)
  2. the Commercial Code of Japan (商法 Shōhō, 1899)
  3. the Criminal Code of Japan (刑法 Keihō, 1907)
  4. the Constitution of Japan (日本国憲法 Nippon-koku-kenpō, 1946)
  5. the Criminal Procedure Code of Japan (刑事訴訟法 Keiji-soshō-hō, 1948)
  6. the Civil Procedure Code of Japan (民事訴訟法 Minji-soshō-hō, 1996)

Legislation in Japan tends to be terse. The statutory volume Roppō Zensho, similar in size to a desk dictionary, contains all six codes as well as the other statutes enacted by the Diet.

Administrative guidance

While Japanese government agencies generally issue formal regulations for the implementation of statutes, they have very limited formal regulatory power in the absence of Diet legislation. However, when dealing with businesses, they often issue "directions," "requests," "warnings," "encouragements," and "suggestions," with the implication that noncompliant parties will be obstructed by the agency in the future by receiving poorer quotas or less government aid. The Cold War-era Ministry of International Trade and Industry was especially well-known for this practice, generally known as "administrative guidance" (gyōsei shidō).

Precedent

While Japan is a civil law system and thus gives no binding value to judicial decisions, the precedents of the Supreme Court and the High Courts are commonly referred to and cited as persuasive precedent.

Civil law

Contracts

Japanese contract law allows greater ambiguity than American contract law. A Japanese contract, for instance, does not require clear statements of offer, acceptance, or consideration: most simply begin with a declaration, e.g. "Company X and Company Y hereby enter into the following agreement." Contracts also tend to contain very little detail, with the parties working out complications as they arise.

Torts

Japan's tort system sees considerably less activity than tort systems in North America. One reason for this is that attorney's fees are based on the amount of damages sought in the suit, not the actual damages won. Because Japan does not use juries, judges decide the outcome of cases, and are usually not easy to sway emotionally. As a result, many individuals choose not to sue when their odds of winning seem low, and when they do sue, they tend to sue for small amounts of damages.

Property

Like several other civil law states, Japan places a great emphasis on the rights of the tenant, and landlords are generally not allowed to unilaterally terminate leases without "just cause," a very narrowly construed concept. Many landlords are forced to "buy out" their tenants if they wish to demolish buildings to make way for new development: one well-known contemporary instance is the Roppongi Hills complex, which offered several previous tenants special deals on apartments.

Despite this emphasis on tenant rights, the government exercises a formidable eminent domain power and can expropriate land for any public purpose as long as reasonable compensation is afforded. This power was famously used in the wake of World War II to dismantle the estates of the defunct peerage system and sell their land to farmers at very cheap rates (one historical reason for agriculture's support of LDP governments). Narita International Airport is another well-known example of eminent domain power in Japan.

Corporate law

Japan's current corporate law is based upon the Corporations Act implemented in 2006.

Under Japanese law the basic types of companies are:

Directors' duties and shareholder liability rules generally follow American precedent.

Criminal law

Japanese criminal sentencing, 1994
Murder
(514)		7 - 10 years in prison
3 years at hard labor
3 - 5 years in prison
5 - 7 years in prison
Other sentences		103 (20%)
96 (19%)
94 (18%)
88 (17%)
133 (26%)
Assault
(10,920)		¥100-200,000 fine
¥200-300,000 fine
¥300-500,000 fine
1 - 2 years at hard labor
6 - 12 months at hard labor
6 - 12 months in prison
1 - 2 years in prison
Other sentences		4130 (38%)
2084 (19%)
1161 (11%)
857 (8%)
571 (5%)
541 (5%)
512 (5%)
1064 (9%)
Drug offenses
(10,766)		1 - 2 years at hard labor
1 - 2 years in prison
2 - 3 years in prison
Other sentences		3,894 (36%)
3,490 (32%)
1,791 (17%)
1591 (15%)
See: Criminal justice system of Japan

In comparison to other countries in the developed world, Japan has a unique prosecutorial system. 99 percent of criminal defendants are convicted in Japan, and almost all are convicted following their own confession. Prosecutors tend to bring charges only when they have a signed confession from the accused, and such confessions often occur after long questioning by police. Although defendants have a right to counsel, it is generally not possible for them to obtain counsel between their arrest and indictment. This makes it difficult to judge the true extent of criminal activity in Japan, since many possible criminals refuse to confess and are thus never indicted.

Japan has a death penalty that can be invoked by the Minister of Justice for murder, arson, and crimes against humanity. The death penalty's constitutionality has been challenged by some advocacy groups in Japan but continues to be upheld by the Supreme Court. There are five other basic forms of criminal punishment in Japan: imprisonment at hard labor, imprisonment, fine, detention (less than 30 days), and minor fine (less than ¥10,000). Japan has been criticized for giving lenient punishments for some crimes, most notably rape (which carries a typical sentence of 2 - 5 years in prison, and a theoretical maximum of fifteen).

Note: The penalties in the Criminal Law were revised and reinforced in 2004. Therefore, the lower limit of the penalty of rape is now 3 years in prison, with a theoretical maximum of twenty.

Intellectual property

See: Japanese copyright law, Japanese patent law.

Wedding Law

See: Wedding Law in Japan.

Law enforcement

The main law enforcement agency in Japan is the National Police Agency (警察庁 Keisatsuchō), which reports to the prime minister. Most day-to-day policing is carried out by prefectural police, which report to prefectural governors. Administrative law enforcement duties are carried out by inspection departments of the various cabinet ministries.

Legal professions

Japan recognizes a number of legal professions. While Japan is often said to have dramatically fewer lawyers than other countries such as the United States, the total proportion of legal specialists in both countries is about the same. The Japanese government has also been taking steps in recent years to increase the number of legal professionals nationwide.

The major professions, each of which has a separate qualification process, include:

In-house legal advisors at major corporations are almost entirely unregulated, although there has been a trend in the past decade towards attorneys moving in-house.

Courts and procedure

See: Judicial system of Japan

Japan's court system is divided into four basic tiers, 438 Summary Courts, one District Court in each prefecture, nine High Courts and the Supreme Court. There is also one Family Court tied to each District Court.

Further reading

  • Port and McAlinn, Comparative Law: Law and the Legal Process in Japan (Carolina Academic Press, 2003), ISBN 0890894647
  • Milhaupt et al., Japanese Law in Context: Readings in Society, the Economy, and Politics (Harvard, 2001), ISBN 0674005198
  • Oda, Japanese Law (Oxford, 2001), ISBN 0199248109
  • Ramseyer and Nakazato, Japanese Law: An Economic Approach (Chicago, 2000), ISBN 0226703851
  • Oda, Basic Japanese Laws (Oxford, 1997), ISBN 0198256868
  • Haley, Authority Without Power: Law and the Japanese Paradox (Oxford, 1994), ISBN 0195092570

See also

Specific laws

Case law

International Family Law

External links

Japanese law | Legal occupations

 

This article is licensed under the GNU Free Documentation License. It uses material from the "Japanese law".

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