Legal institutions
This section focuses on the institutions responsible for creating and interpreting law - the National Diet and the courts.
4.1 TheNationalDiet
Japan's Parliament is known as the National Diet.
It has exclusive law-making capacity and is the highest organ of the state, representing the sovereign power of the people.[360] It replaced the Imperial Diet of the Meiji era alongside the passage of the new Constitution in 1946.[361] The National Diet comprises the House of Representatives and the House of Councillors. Both Houses are elected through universal adult suffrage. There is a four-year term for the Lower House and a six-year term for the Upper House, which holds elections for half of its members every three years. Voting in both Houses is a complicated hybrid of constituencies and proportional representation.[362] ABill becomes law after the passage through both Houses; though, as noted above, the House of Representatives may trump the House of Councillors with a two-thirds majority.[363]4.2 The courts
The creation ofJapan's modernjudicial institutions tracked the reception ofEuro- pean laws in the second half of the 19th century.[364] Like the content of law, while the French influence was initially dominant, Japan soon moved to a Prussian (and then German) model.[365] In the pre-war period this entailed a multi-tiered court system with a degree of judicial independence secured by relatively secure appointments, albeit made by the Ministry of Justice.[366] The Ministry's considÂerable power was also drawn from its administration of the judicial system.[367] Prosecutorswere the mostpowerful practitioners of lawbyvirtue of their associaÂtion with the Ministry.[368] Challenges to government were quarantined to special administrative courts with very limited capacity and jurisdiction.[369]
Many changes occurred in Japan's legal system after the war.
For a start, the independence of the courts was enhanced and their capacity strengthened. This was achieved by granting the Supreme Court explicit constitutional authority to undertake judicial and constitutional review.[370] The Supreme Court was given complete and general judicial authority in Japan.[371] This meant that the special administrative court was abolished and any other forum with a judicial character was not permitted. As in other jurisdictions, this principle has been compromised somewhat by the creation of hybrid institutions that wield authority of both an executive and judicial character. For example, there is the Fair Trade CommisÂsion, though decisions of bodies such as these are subject to judicial review or direct appeal to an appellate court.[372] A third major change after the war was that the positions of the three practitioners of law were levelled to large degree through a common path to practice: passage of a Bar examination and apprenticeship at a government-run institution, the Legal Training and Research Institute.[373]There are five types of court in Japan:[374] the Supreme Court, High Courts (eight in number), District Courts (50, with 280 branches or local offices), FamÂily Courts (50, with 203 branches) and Summary Courts (438). There are 15 justices on the Supreme Court including the Chief Justice. It has final appellate jurisdiction. There is no automatic appeal to the Supreme Court, and the criteria for appeal may generally be summarised as, first, cases relating to the ConstituÂtion and, second, cases where the Supreme Court or a higher court grants leave. A case first proceeds to a Petty Bench comprising five justices and then to the Grand Bench if a constitutional issue is indeed raised.
The Supreme Courtis also responsible for administering the judicial system. In principle, this structure guarantees institutional independence from other arms of government. This role can be broken down into two parts.
First, the Court has the responsibility to monitor the judicial system and therefore has authority to set judicial rules governing procedure, discipline, and other administrative matters. Second, the Supreme Court has the responsibility to administer itself and the lower courts. Within this power the Court appoints and promotes the judges who make up the system. This has led to criticisms that the Court seeks to perpetuate its own conservative institutional interests by favouring those who reflect the status quo values.[375]There is a High Court in each regional centre, six additional branches, and since 2005, a special High CourtbranchinTokyo forintellectual property matters. High Courts have appellate authority over decisions from a District Court or Family Court, and also hear some cases falling under Supreme Court jurisdiction asprovidedforinthecodesofprocedure.Incriminalcases,HighCourtsalsohear criminal appeals directly from a Summary Court. A High Court also has original jurisdiction over certain matters, for example, electoral issues. In principle, three judges sit in a High Court case.
District Courts are distributed on the basis of equal geographical divisions. They are generally the court of first instance, except when hearing a civil appeal from a Summary Court. Usually, only one judge sits in a District Court except in the following cases: first, serious criminal cases, which also require the empanÂelling of three judges and six â€?lay assessors’ (saiban-in) ;[376] second, in appeal cases; and third, where a specific law provides otherwise.
The Family Court is the equivalent of a District Court Withjurisdiction over family relationships, succession, and juvenile justice. The institution was creÂated in 1949 based on the belief that such matters would be more satisfactorily resolved in an informal, non-confrontational setting, at least at the first instance. This ideal has been compromised somewhat by the rationalisation of matters relating to divorce as solely falling under the original jurisdiction of the Family Courts.[377] Until 2004 District Courts had jurisdiction over litigation in such matÂters, whereas the Family Court oversaw conciliation and a more authoritative form of decision-making, called a â€?determination’ (shimpan), that was nonetheÂless not final because either party could then proceed to full litigation (soshou) in a District Court.
Because of the nature of the Family Court as a hybrid between a welfare and a judicial institution, it is staffed by experts in social welfare such as Family Court probation officers, who have worked closely with individuals that come before the Court and report to Family Court judges. Typically, one judge will preside over a Family Court, though in some cases three judges will sit.Summary Courts are the most numerous type of court, but are limited in jurisdiction and capacity. A summary court has jurisdiction in civil cases that involve claims for less than 1.4 million yen, and minor criminal offences. In a limited number of crimes, a Summary Court may impose up to three years’ imprisonment with labour. A single judge sits in a Summary Court.
4.3 Other dispute resolution forums
In addition to the courts, other bodies play dispute resolution roles. Most imporÂtantly, conciliation is a formal part of a court system (especially in family and civil cases) hearing over half a million matters a year. In addition, mediation sponsoring entities include government-run organisations such as the Consumer Alternative Dispute Resolution (ADR) Committee of the National Consumer Affairs Center of Japan,[378] and non-profit organisations such as the Center for Settlement of Traffic Accident Disputes.[379] Some have argued that the Japanese citizenry has a preference for conciliation over litigation as a cultural trait.[380] However, there are other reasons why this maybe the case, for example, the cost and complexity involved in litigation in Japan, or an explicit government policy of containing disputes.[381] Another form of alternative dispute resolution is arbiÂtration. Bodies such as the Japan Commercial Arbitration Association conduct arbitration with regard to commercial disputes.[382] Though arbitration has not been a popular form of dispute resolution in Japan, this is slowly changing due to recent reforms.[383]
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