Oddities Of The Japanese Legal System

Every country has its unique characteristics. By maintaining its culture and tradition and internalizing them in the face of modernization and Westernization, Japanese societies has evolved as a unique society. Its legal system is also as unique, with many features that are not so common elsewhere.
Oddities of the Japanese Legal System
Source - Wikimedia Commons (https://commons.wikimedia.org/wiki/File%3ASaikosaibansho.jpg)

Japanese Legal System is as unique as its society. Part of the developed world, Japan has taken a route that is somewhat different from the Western hemisphere. Its reliance on harmony and social cohesion helps it achieve high levels of advancement and its legal system fits into that context reasonably well, irrespective of whatever oddities others may perceive there.

Japan: A Unique Society

During my stay in Japan, I did not come across a single case of two Japanese persons quarreling with each other in a loud voice! To appreciate the characteristics of the Japanese legal system, and its essence, one

first needs to be familiar with the Japanese society and its people.

In many ways it is a different world. The Japanese legal system remains somewhat strange for the Western world because Japanese society has a lesser need for a complicated legal system, where cases may be decided by the professional capabilities of the counsels. Crime in Japan is so rare, that often a case of theft would get reported on national news telecast for several days. A murder would get reported and reviewed in the media for ages.

It would not be wrong to say that the Japanese society is governed more by social rules than formal legal ones. Right up to the Meiji restoration, when the old Samurai class was relegated to the sidelines, the social order in Japan was largely a product of the concept of honor and loyalty. Even after the modernization began in 1850s and even though Japan adopted written code of law, the concept of honor has remained enshrined in their conduct and day to day life, including business, and immensely contributed to a virtually crime free society.

The Japanese Legal System and its Characteristics

The Japanese legal system is not based on the common law system, unlike United States, and thus, despite the reforms induced during the post war occupation by the U.S. forces, the legal systems are vastly different. The civil code, developed in 1896, is largely based on the Civil code of Germany, while the code of criminal procedure is based on French semi-inquisitorial system. The whole legal system operates in a very different way than U.S. and other countries following the common law system.

In the criminal system, the public procurator (equivalent to the prosecutor) occupies the most important place. For lower courts, the judges as well as the procurators are civil servants, and indirectly controlled by the Ministry of legal justice. The procurator and the judge are also interchangeable, and hence the word of the procurator carries an enormous weight. All cases are first referred to the public procurator who then decides whether a case is fit for trial or not. Only those cases, where the procurator feels that there will be conviction is sent to trial. Once in trial, the power of examining the witnesses lies with the judge. The defense counsel can not directly cross examine the witness. The jury system has been abolished since 1943, but now as per the 'new jury law' it will be reintroduced from 2009. The rights of the accused are severely less than other countries.

High Rates of Conviction in Japan

The rates of

conviction in Japan are very high. Several reasons have been assigned to this phenomenon, but in my opinion there are four main reasons. First is the low crime level, because of which it is easier to investigate crime. Second, the low crime level, and the high level of honor in society means that there are few sympathizers with those accused of crime. Third, the concept of honor, reminiscent of hara-kiri, creates an expectation that a criminal when confronted by authorities will confess crime and ask for punishment instead of denial and legal battling, resulting in a high rate of confessions. Incidentally, the trial is held in two stages- first to decide the guilt, and second to decide the sentence; and the sentence is likely to be much more severe in case the accused has failed to confess guilt and offered public apology. Lastly, the procurator system ensures that cases that are weak are never tried, while those that are tried have a high conviction rate.

The Police have many special powers in Japan. They can keep an accused in custody under certain conditions up to 23 days. They also hold investigation, the results of which are admissible before the court. They also have discretion to let off the accused in minor offenses, with a letter of apology, or to keep juvenile offenders under probation before putting them on trial.

Other Characteristics of Japanese Legal System

The civil legal system is also very different from the rest of the developed world. The Administrative guidance is highly developed in matters involving the state. In case of tax matters, the assessment of income is often a matter of voluntary request - The taxpayer is supposed to request the tax department to visit him or his 'kaisha' (company), and guide him about how much tax he should pay. In reality, the tax department calls him to fix a date for 'voluntary' assessments.

In matters of violence, often both the parties are held guilty, though to differing degrees, even though the problem may have been initiated by only one. As result in case of violent assault, in a public place, as used to be sometimes witnessed, as a result of rivalry between Japanese mafia (Yakuza), most Japanese will prefer to be mute spectators, even when they can easily overpower the perpetrators of crime.

It will not be out of place to say that the peculiar legal systems of Japan serve it very well because of the strength of its social norms and values. It is a case of law abiding people preferring to keep things simple and uncomplicated by providing the adjudication of matters to public officials whom they trust because of the overall high degree of integrity and reliability.

In most other nations, these may not be able to work, but in Japan, they are more than enough !

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