7. PROCEDURAL LAW: CONCILIATION
Having been quite foreign to Japan, the modern court system as well as procedural law was wholly received from Western countries in order to make the system operate. In criminal procedure, there was no room for adopting indigenous practices.
The Otsu Case may be an illustration of this, for it exemplifies that even an appeal to a national crisis or the authority of the Imperial Family finally failed to outweigh the observance of the modern penal principle (cf. Note 32). In civil procedure there is a significant exception in that it adopted an indigenous practice, called wakai (conciliation) or chotei (mediation).As is noted in an article written by Takeyoshi Kawashima, it was an influence of Japanese indigenous law that:
“... Japanese not only hesitate to resort to a lawsuit but are also quite ready to settle an action already instituted through conciliatory processes during the course of litigation....”
“... in the traditional ways of settling disputes the solution was, in principle, reached through agreement by both parties. The notion that a justice measured by universal standards can exist independent of the wills of the disputants is apparently alien to traditional habit of the Japanese people.” (1963: 50)
The influence was so deeply rooted in Japanese society that four mediation laws were enacted to deal specifically with problem cases of leased land and buildings in 1922, of tenancy in 1924, of loan in 1932, and of family affairs in 1939. Their lawmakers’ intention was that “the disputes themselves were to be �washed away’ (mizu ni nagasu) by reconcilement” “instead of co-ordinating the conflicting vested interests” (ibid.: 53–54). Such an idea of legal conciliation developed out of the legal reform after the War into a general mediation system applicable to all cases between persons, although the main laws concerned are divided into two: Law of Mediation of Civil Affairs in 1951 and Law of Mediation and Determination of Family Affairs in 1947.
But such a general institution of mediation cannot function to preserve the “premodern” Japanese preference alone.39 The Family Court, with jurisdiction of mediation and determination of family affairs, was instituted under the strong influences of the modern idea of family declared in the new Constitution. The present mediation system has assimilated received factors as well as preserving indigenous ones.