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Case Law in Japan

Published online by Cambridge University Press:  13 February 2019

Takashi Ishida
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Abstract

Shortly after the Meiji Restoration, under the influence of French law, a modern system of judicial administration was introduced in Japan. In 1871 the Ministry of Justice was created, and in 1872 several kinds of courts were established. However, in this period, the separation of powers had not yet been implemented. Therefore, it was not until 1875, the Eighth year of the era of Meiji, that Japan established a unified judicial system. In that year, for the first time, the judicial service was separated from the executive power and became independent, except that the Ministry of Justice retained responsibility for the functioning of the courts and the appointment of all court personnel, including judges. Under “Taishinin Sho-saibansho Shokusei Shōtei” (the Rules for the Organization of the Great Court of Judicature and Various Other Courts), one highest court “Taishin-in” (the Great Court of Judicature) and two types of inferior courts “Jōtō-saibansho and Fu-kensaibansho” (Higher Courts and Provincial Courts) were set up.

Type
Articles
Information
International Journal of Law Libraries , Volume 7 , Issue 2 , April 1979 , pp. 133 - 154
Copyright
Copyright © 1979 International Association of Law Libraries.

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Footnotes

*

Takashi Ishida, Chief of Processing Section, Supreme Court Library, Tokyo.

References

1 SeeShigemitsu Dandō translated byGeorge, B.J. Jr., Japanese Criminal Procedure, 14-16 (1965); andYoshiyuki Noda, translated byAngelo, Anthony H., Introduction to Japanese Law, 53-54 (1976).Google Scholar

2 Shihō-shō-saibansho (the Ministry of Justice Court), Fu-ken-saibansho (Provincial Courts) and Ku-saibansho (Ward Courts).Google Scholar

3 Fukoku, Dajōkan (the Great Council of State Proclamation), No. 91 of 1875.Google Scholar

4 Fukoku, Dajōkan, No. 103 of 1875, art. 3.Google Scholar

5 Ibid., art. 4. These two articles are originated from art. 5 of the French Civil Code.Google Scholar

6 Hō, Saibansho Kōsei, Law No. 6 of 1890.Google Scholar

7 E.g., the Civil Code of 1896, though retaining the provisions drafted by Boissonade, followed the German Civil Code, and the Code of Civil Procedure of 1890 was enacted with an exact copy of the German law of 1877.Google Scholar

8 A few legal scholars, however, took a different position.E.g., Rokuichirō Masujima published commentaries on court decisions in Hōgaku Kyōkai Zassi (the Journal of the Jurisprudence Association) from the year 1888.Google Scholar

9 The former name of Tokyo Hōgaku-in was Igirisu Hōritsu-gakko. The name of Tokyo Hōgaku-in has been changed to Chuo University.Google Scholar

10 Suehiro, Izutarō, Jo (Preface) to Hanrei Mimpō: Taishō 10 Nendo (Case Law in the Field of Civil Law: 1921) 2-4 (1923); for further details; see Hideo Tanaka, assisted by Malcolm D. H. Smith, The Japanese Legal System, 146-150 (1976).Google Scholar

Mimpō Hanrei Kenkyū Kai (The Study Group of Case Law in the Field of Civil Law) was founded in 1921 by several law professors of the Tokyo Imperial University. In 1922, Mimpō Hanrei Kenkyū Kai changed its name to Minjihō Hanrei Kenkyū Kai (The Study Group of Case Law in the Field of Civil Law Matters).Google Scholar

Professor Suehiro, who studied in the United States, was deeply impressed by the value of the case method and he advocated the use of this method for a more scientific study of the law. See Noda,supra, 227.Google Scholar

11 The title was changed in 1922 and the publishing institute was changed from volume 2 for the year 1923.Google Scholar

12 Hō, Gyōsei Saiban, Law No. 48 of 1890.Google Scholar

13 Vols. 1-33 were published by the Tokyo Hōgaku-in (Chuō University), vols. 34-53 were published by Teikoku-Chihō-Gyōsei Gakkai and vols. 54-58 were published by the Supreme Court.Google Scholar

14 No. 1-4922. [6 times a month. Published by Hōritsu Shimbun-sha (the Legal News Publishing Co.)]Google Scholar

15 Hō, Saibansho, Law No. 59 of 1947.Google Scholar

16 Constitution, art. 81.Google Scholar

17 Hō, Saibansho, supra, art. 11.Google Scholar

18 This does not mean the opinion of the court is always a brief holding. In constitutional cases, a lengthy discussion of the issues is given.Google Scholar

19 The rate of appeals from High Courts (at the average rate) is about 40 percent both in civil and criminal.Google Scholar

20 Kitei, Hanrei Iinkai (Regulation of the Case Law Committee): Saikō Saibansho Kitei (Regulation of the Supreme Court) No. 7 of 1947, art. 1.Google Scholar

21 Criminal reports of lower courts are published in three series. First series [titled Daiisshin Keiji Saibanreishū (Reports of Criminal Decisions of Courts of First Instance)] covers Jan. 1958-Dec. 1958. Second series [titled Kakyū Saibansho Keiji Saibanreishū (Reports of Criminal Decisions of Inferior Courts)] covers 1959-1968. Third series [titled Keiji Saiban Geppō (Monthly Reports of Judgments on Criminal Relations)] covers 1969 to date.Google Scholar

22 The Family Court which was created in 1949 has jurisdiction over all disputes within the family, and its Juvenile Division handles cases involving delinquent juveniles under 20 years of age as well as adults who have in some way brought about an injury to the welfare of juveniles.Google Scholar

23 Saibansho Hō, supra, art. 18.Google Scholar

24 Ibid., art. 26.Google Scholar

25 Ibid., art. 77.Google Scholar

26 There are some opinions holding that an established precedent creates customary law. However, other scholars, such as Professor Yunoki, deny these opinions, criticizing: “Nor does an established precedent create customary law, since it is the work of specialists in law and has not been directly derived from the people's conviction that the rule should have legal effect. Custom which has been built by specialists in law is nothing more than judicial custom.” Kaoru Yunoki,Hanrei Kenkyū no Mokuteki to Hōhō (The Purpose and the Method of ‘Precedent’ Research), 16 Hō-shakaigaku (the Sociology of Law): Hō-shakaigaku Kenkyū (Researches for the Sociology of Law), 1, 4 (1964).Google Scholar

27 United States v. Morris (Case No. 15, 815), 26 Fed. Cas. 1323, 1336 (Oct. Term,1851)(Circuit Justice Curtis).Google Scholar

28 Hō, Saibansho, supra, art. 10. All cases other than those which already come within the competence of the Grand Bench are assigned first to one of three Petty Benches. When the Petty Bench finds out that the case involves a constitutional question or a question requiring a change of precedents previously rendered by the Supreme Court, it shall be transferred to the Grand Bench.Google Scholar

29 Hō, Saibansho, supra, art. 4.Google Scholar

30 Hō, Keiji Soshō (Code of Criminal Procedure), Law No. 131 of 1948, art. 405 (2),(3); Minji Soshō Kisoku (Rules of Civil Procedure): Saikō Kaibansho Kisoku, Rule No. 2 of 1956, art. 48.Google Scholar

31 Kent, James, 1 Commentaries on American Law, N.Y., O. Halsted, 442-443 (1826).Google Scholar

32 Kawashima, Takeyoshi, Hanrei Kenkyū no Hōhō (Methods of Studies of Precedents), No. 386 (vol. 34-1) Hōritsu Jihō 4, 9 (1962).Google Scholar

33 Tanaka, Hideo,Hanrei ni yoru Hōkeisei: Rippō ni yoru Hōkeisei tono Hikaku o Chūshin ni (Law-making through Judicial Precedents: In Comparison with Law-making through Legislation). 94 Hogaku Kyōkai Zashi, 755, 759-760 (1977).Google Scholar

34 See,e.g.,Kawashima, Takeyoshi,Hanketsu to Hanketsu-rei (Decisions and Judicial Precedents), 3 Saiban-hō no Shomondai (Some Problems in the Law of Judicial Administration), 652-661 (1970). In fact, in many law reports published by the Supreme Court, the Reports of the Supreme Court and the Reports of the High Courts only bear the titles Hanreishū (Collections of Judicial Precedents), and other lower court reports bear the titles Saibanreishū (Collection of Decisions). For further detail, see Takamasa Ono,Hanreishū ni tsuite (On Law Reports), 18 Shokikan-Kenshushō Ronshū (Law Journal of the Research and Training Institute for Court Clerks), 135, 137-138, and see Lawrence W. Beer & Hidenori Tomatsu.A Guide to the Study of Japanese Law, 23 American Journal of Comparative Law 284, 306-308, 311-313 (1975).Google Scholar

35 See,e.g., Tanaka,supra, note 33, 762.CrossRefGoogle Scholar

36 SeeSuehiro, ,supra, note 10, 5.Google Scholar

37 SeeNakamura, Jiro,Hanrei ni tsuite (On Precedents), 1976-II Shihō-Kenshüsho Ronso (Law Journal of the Legal Training and Research Institute), 1, 19 (1976).Google Scholar

38 Suehiro, Izutarō, Jo (Preface) to Hanrei Mimpō: Taishō 11 Nendo (Case Law in the Field of Civil Law:1922), 3-4 (1923).Google Scholar

39 SeeTanaka, ,supra, note 33, 781.Google Scholar

40 SeeNakamura, ,supra, 21.Google Scholar

41 Borden Luther v., 7 How. (48 U.S.) 1,41 (1849). (Chief Justice Taney).Google Scholar

42 Andres v. United States, 333 U.S. 740, 752-753 (1948).Google Scholar

43 Cardozo, Benjamin N., Growth of the Law, New Haven, Yale Univ. Press, 96-97 (1924).Google Scholar

44 Until the Lord Chancellor's announcement on July 26th, 1966, the House of Lords regarded itself as absolutely bound by its own previous decisions; however, on that day Lord Gardiner, L.C. made a statement that their Lordships proposed in future to “modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so.”Google Scholar

45 SeeWalker & Walker,The English Legal System,London,Butterworths,118–122 (4th ed.,1976).Google Scholar

** Prepared by the Supreme Court of Japan,1975.Google Scholar