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Law of Japan

The law of Japan refers to the legal system in Japan, which is primarily based on legal codes and statutes, with precedents also playing an important role.[1] Japan has a civil law legal system with six legal codes, which were greatly influenced by Germany, to a lesser extent by France, and also adapted to Japanese circumstances. The Japanese Constitution enacted after World War II is the supreme law in Japan. An independent judiciary has the power to review laws and government acts for constitutionality.

Historical developments[edit]

Early Japan[edit]

The early laws of Japan are believed to have been heavily influenced by Chinese law.[2] Little is known about Japanese law prior to the seventh century, when the Ritsuryō was developed and codified. Before Chinese characters were adopted and adapted by the Japanese, the Japanese had no known writing system with which to record their history. Chinese characters were known to the Japanese in earlier centuries, but the process of assimilation of these characters into their indigenous language system took place in the third century. This was due to the willingness of the Japanese to borrow aspects of the culture of continental civilisations, which was achieved mainly via adjacent countries such as the Korean kingdoms rather than directly from the Chinese mainland empires.[3]


Two of the most significant systems of human philosophy and religion, Confucianism (China) and Buddhism (India), were officially transplanted in 284–285 and 522 AD respectively, and became deeply acculturated into indigenous Japanese thought and ethics.[4] David and Zweigert and Kotz argue that the old Chinese doctrines of Confucius, which emphasize social/group/community harmony rather than individual interests, have been very influential in the Japanese society, with the consequence that individuals tend to avoid litigation in favour of compromise and conciliation.[5] In addition, it is presently believed that various arts and techniques in many fields of production, such as agriculture, weaving, pottery, building construction, medicine and tanning, were brought to Japan by immigrants by way of the Korean peninsula. These immigrants, wherever they came from, had significant influence on the development of Japan.


It is theorized by some that the flow of immigrants was accelerated by both internal and external circumstances. The external factors were the continuing political instability and turmoil in Korea, as well as the struggle for central hegemony amongst the Chinese dynasties, kingdoms, warlords, invasions and other quarrels. These disturbances produced a large number of refugees who were exiled or forced to escape from their homelands. Immigrants to Japan may have included privileged classes, such as experienced officials and excellent technicians who were hired in the Japanese court, and were included in the official rank system which had been introduced by the immigrants themselves. It is conceivable – but unknown – that other legal institutions were also introduced, although partially rather than systematically, and this was probably the first transplantation of foreign law to Japan.[6]


During these periods, Japanese law was unwritten and immature, and thus was far from comprising any official legal system. Nonetheless, Japanese society could not have functioned without some sort of law, however unofficial. Glimpses of the law regulating people's social lives may be guessed at by considering the few contemporary general descriptions in Chinese historical books. The most noted of these is The Record on the Men of Wa, which was found in the Wei History, describing the Japanese state called Yamatai (or Yamato) ruled by the Queen Himiko in the second and third centuries. According to this account, Japanese indigenous law was based on the clan system, with each clan forming a collective unit of Japanese society. A clan comprised extended families and was controlled by its chief, who protected the rights of the members and enforced their duties with occasional punishments for crimes. The law of the court organised the clan chiefs into an effective power structure, in order to control the whole of society through the clan system. The form of these laws is not clearly known, but they may be characterised as indigenous and unofficial, as official power can rarely be identified.[7]


In this period, a more powerful polity and a more developed legal system than the unofficial clan law of the struggling clan chiefs was required effectively to govern the society as a whole. Yamatai must have been the first central government which succeeded in securing the required power through the leadership of Queen Himiko, who was reputed to be a shaman. This leads to the assertion that Yamatai had its own primitive system of law, perhaps court law, which enabled it to maintain government over competing clan laws. As a result, the whole legal system formed a primitive legal pluralism of court law and clan law. It can also be asserted that this whole legal system was ideologically founded on the indigenous postulate which adhered to the shamanistic religio-political belief in polytheistic gods and which was called kami[8] and later developed into Shintoism.[9]


Two qualifications can be added to these assertions. First, some Korean law must have been transplanted, albeit unsystematically; this can be seen by the rank system in court law and the local customs among settled immigrants. Second, official law was not clearly distinguished from unofficial law; this was due to the lack of written formalities, although court law was gradually emerging into a formal state law as far as central government was concerned. For these reasons, it cannot be denied that a primitive legal pluralism had developed based on court and clan law, partially with Korean law and overwhelmingly with indigenous law. These traits of legal pluralism, however primitive, were the prototype of the Japanese legal system which developed in later periods into more organised legal pluralisms.

(yūgen sekinin jigyō kumiai)

Limited liability partnerships

(K.K.), similar to an American corporation

Kabushiki kaisha

(G.K.), similar to an American limited liability company

Gōdō kaisha

, similar to an American general partnership

Gōmei kaisha

, similar to an American limited partnership

Gōshi kaisha

, a now abolished form based on the German GmbH (limited liability company)

Yūgen kaisha

Legal classification. The three main categories of crime under the Japanese Criminal Law are crimes against the state, crimes against society and crimes against individuals. This law was passed under the old Constitution which had mainly focused on the power of the emperor and the state. As a result, crimes against the imperial family and the state were highly emphasized. While crimes against the imperial family were abolished after World War II, the fundamental structure of this law was little changed. Since there has been no complete revision of the law, the law remains fairly antiquated on the surface.

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Expenditures. There are two types of police budgets: the national budget and the prefectural budget. The national police budget covers the expenditures of the NPA relevant to the execution of duties under its jurisdiction, including personnel costs, expenses incurred by the prefectural police which are shouldered by the state, and subsidies to the PP. Expenditures needed by the PP to carry out their duties are appropriated in the budget of each prefecture. In 1992, the NPA budget totalled 213,464 billion yen and the PP budget totalled 2,992,454 million yen (US$270 billion).

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(弁護士, bengoshi)

Attorney at law

Registered (外国法事務弁護士, gaikokuhō jimu bengoshi, or "gaiben")

Attorney at foreign law

(公証人, kōshōnin)

Notary

(行政書士, gyōsei shoshi)

Administrative scrivener

(司法書士, shihō shoshi)

Judicial scrivener

(公認会計士, kōnin kaikeishi)

Certified public accountant

(税理士, zeirishi)

Certified tax accountant

(弁理士, benrishi)

Patent attorney

(社会保険労務士, shakai hoken rōmushi)

Certified social insurance and labor consultant

(土地家屋調査士, tochi kaoku chōsashi)

Land and House Investigator

Japan recognizes a large number of legal professions, however the number of lawyers is significantly fewer than in the United States. This is due to the fact that Japanese law is based on the Continental European civil law system and a very small number of lawyers (advocates) are complemented by large numbers of civil law notaries and scriveners. Japan introduced a new legal training system in 2004 as part of a justice system reform. The justice system reform has been criticized for failing to incorporate a gender perspective.[74] 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.

Rights of the accused. The Constitution is the source of individual rights in the setting of criminal investigations and trial. Article 31 declares, "No person shall be deprived of life or liberty, nor shall any other penalty be imposed, except according to procedure established by law", which is regarded as the principle of due process. Article 33 covers protection from illegal arrest: "no person shall be arrested except upon a warrant issued by a competent judicial official, which specifies the offense with which a person is charged". Article 34 protects persons from illegal confinement and Article 35 protects persons from illegal deprivation of residence and property.

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Sweden v. Yamaguchi

Teruki Tsunemoto, , trans. Daryl Takeno, Asian-Pacific Law & Policy Journal

"Trends in Japanese Constitutional Law Cases: Important Judicial Decisions for 2004"

Teruki Tsunemoto, , trans. John Donovan, Yuko Funaki, and Jennifer Shimada, Asian-Pacific Law & Policy Journal

"Trends in Japanese Constitutional Law Cases: Important Legal Precedents for 2005"

Teruki Tsunemoto, , trans. Asami Miyazawa and Angela Thompson, Asian-Pacific Law & Policy Journal

"Trends in Japanese Constitutional Law Cases: Important Legal Precedents for 2006"

Teruki Tsunemoto, , trans. Mark A. Levin and Jesse Smith, Asian-Pacific Law & Policy Journal

"Trends in Japanese Constitutional Law Cases: Important Legal Precedents for 2007"

Public Domain This article incorporates text from this source, which is in the public domain. Country Studies. Federal Research Division.

Constitution of Japan

Government of Japan

Human rights in Japan

Judicial system of Japan

Juries in Japan

Legal systems of the world

Politics of Japan

Women in law in Japan

Francisco Barberán & . Código civil japonés: Estudio preliminar, traducción y notas, 2nd edn. Madrid: Thomson-Aranzadi, 2006. ISBN 978-84-9767-632-8.

Rafael Domingo Osle

Francisco Barberán, Kiyohiko Kuroda, & Fuminobu Okabe, eds. Introducción al derecho japonés actual. Cizur Menor: Thomson Reuters-Aranzadi, 2013.  978-84-9014-912-6.

ISBN

Meryll Dean. Japanese Legal System, 2nd edn. London: Routledge-Cavendish, 2002.

Daniel H. Foote, ed. Law in Japan: A Turning Point. Seattle, Wa.: University of Washington Press, 2007.  0-295-98731-6

ISBN

Colin P. A. Jones & Frank S. Ravitch. The Japanese Legal System. St. Paul, Minn.: West Academic Publishing, 2018.

Curtis J. Milhaupt, J. Mark Ramseyer, & Mark D. West. The Japanese Legal System: Cases, Codes, and Commentary, 2nd edn. NY: Foundation Press; Thomson/West, 2012.

Yosiyuki Noda. Introduction to Japanese Law. Trans. by Anthony H. Angelo. Tokyo: University of Tokyo Press, 1976.

Hiroshi Oda, ed. Basic Japanese Laws. Oxford: Oxford University Press, 1997.  0-19-825686-8

ISBN

Hiroshi Oda. Japanese Law, 3rd edn. Oxford: Oxford University Press, 2009.  0-19-924810-9

ISBN

Carsten Rasch. Penal Code / Code of Criminal Procedure of Japan: Laws and Regulations of Japan. Norderstedt: Books on Demand, 2015.

Carsten Rasch. Civil Code / Commercial Code / Code of Civil Procedure of Japan: Laws and Regulations of Japan. Norderstedt: Books on Demand, 2015.

by the Ministry of Justice (Japanese Law Translation Database System in English)

Japanese Law Translation

(about judicial system, judicial statistics, court procedure, court cases, judicial training system, etc.)

Supreme Court of Japan

(Civil Affairs Bureau, Criminal Affairs Bureau, Correction Bureau, Rehabilitation Bureau, Human Rights Bureau, Immigration Bureau, Public Prosecutors Office, etc. Also contains annual "White Paper on crime")

Ministry of Justice

Intellectual Property High Court

Decade History and Future Prospects of Intellectual Property High Court

Japan Patent Office

Labor law (in English) – includes Worker Dispatch law

Laws & Regulations on Setting Up Business in Japan: Human Resource Management (JETRO)

Ono,Shusei "A Comparative Study of the Transfer of Property Rights in Japanese Civil Law(1)"

Japanese Wikipedia article on "List of Japanese laws" (contains links to many key Japanese laws)

Links on Japanese law

Japanese Family Laws in English and Japanese

Summaries of major court cases

National Police Agency

discussion paper by Masayuki Yoshida in the electronic journal of contemporary japanese studies, 13 October 2003.

The Reluctant Japanese Litigant: A new assessment

The Australian Network for Japanese Law (ANJeL)

Columbia Law School's Center for Japanese Legal Studies (CJLS)