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Legal transplants and jury trial in Japan

Published online by Cambridge University Press:  02 January 2018

Meryll Dean
Meryll Dean*
Affiliation:
Oxford Brookes University
*
*[email protected]
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Abstract

Alan Watson's theory of legal transplants was pioneering and innovative. It moved comparative law beyond ideas of legal families and legal systems by providing both a tool and a metaphor for examining hybrid, or mixed, legal systems. However, socio-legal comparativists in particular criticised his approach because of its failure adequately to acknowledge the importance of legal culture in transplant theory. As a hybrid legal system Japan provides an operative laboratory of comparative law. This paper examines jury trial to evaluate Watson's theory. It concludes by offering a new threefold categorisation of legal transplants.

Type
Research Article
Information
Legal Studies , Volume 31 , Issue 4 , December 2011 , pp. 570 - 590
Copyright
Copyright © Society of Legal Scholars 2011

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References

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14. Japan had been a closed country until the mid-nineteenth century Dean, above n 4. The reception of Western law in nineteenth and early twentieth century Japan adheres to the third class of hybrid countries which Ogus identifies in his analysis of legal transplants using economic law, namely a country which experienced industrial and commercial development relatively late and where rulers recognised the need to look elsewhere for more sophisticated legal input than the domestic legal system could provide. Ogus, above n 11.

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17. Örücü, above n 10, p 212.

18. Japan joined the League of Nations in 1920 as one of the 42 Charter members and one of the four permanent members of the Council of the League. Until its withdrawal in 1933, following criticism of its occupation of parts of Manchuria, Japan was active in the humanitarian and judicial affairs activities of the League. In 1938 it severed all ties with the League. Burkman, Tw Japan and the League of Nations (Honolulu: University of Hawai'i Press, 2008)Google Scholar.

19. Örücü, above n 10, p 214.

20. Thaman, S ‘Europe's new jury systems: the cases of Spain and Russia’ (1999) 62 L & Contemporary Problems 233 CrossRefGoogle Scholar. Inga Markovits' work on law reform in Eastern Europe also offers insights into the Russian experience of transplanting a jury system and, arising out of this, she identifies five types of transplant: (i) self-executing reforms; (ii) potted transplants; (iii) novel culturally embedded transplants; (iv) hybrids and (v) ill-grounded transplants. Markovits, I ‘Exploring law reform – but will it travel?’ (2004) 37 Cornell Int'l L J 95 Google Scholar.

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23. The Guidebook was published by the Japan Jury Association. Dobrovolskaia, above n 22, at 240.

24. Ibid, at 248.

25. Ibid, at 277–278.

26. Watson, above n 1, p 79. Watson's later work acknowledges the role culture plays in determining what happens to a transplanted rule, above n 5. Nevertheless, the idea of grafting still challenges his theory.

27. Jury Law 1923 Arts 2, 3 and 6.

28. July Law 1923 Art 103.

29. Dobrovolskaia, above n 22, at 244.

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34. Ogus, above n 11 and n 14; this is the second of Ogus' three categories.

35. Chiba, M Legal Pluralism: Towards a General Theory Through Japanese Legal Culture (Tokyo: Tokai University Press, 1989)Google Scholar. Chiba claims that the immigration of people from the Korean peninsular in the third century AD was ‘probably the first transplantation of foreign law to Japan’. Chiba, M Legal Cultures in Human Society (Tokyo: Shinzansha International, 2002) pp 20 21 Google Scholar.

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39. Ibid, at 68.

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41. Dobrovolskaia, above n 38, at 69.

42. Japan Federation of Bar Associations Jury Trials in Okinawa: an Investigative Report on the Jury System in Pre-Reversion Okinawa (Tokyo, 1992).

43. Dobrovolskaia, above n 38, at 74.

44. The cultural barrier argument grew out of the work of Kawashima which argues that Japanese citizens had a cultural preference for informal mediation and alternative dispute resolution. This was challenged by Haley who argued that low litigation rates had very little to do with cultural values and ideology but were the result of ‘institutional incapacity’ which included insufficient courts and lawyers. The traditionalist view of Japanese legal culture was relied upon by the Japanese Supreme Court and the Ministry of Justice for many years to argue against lay participation in the criminal justice system. T Kawashima ‘Dispute resolution in contemporary Japan’ in von Mehren, above n 8; Haley, J ‘the myth of the reluctant litigant’ (1978) 4 J Japanese Stud 359 CrossRefGoogle Scholar; Sato, I ‘Survey article: judicial reform in Japan in the 1990s’ (2002) 5 Soc Sci Japan J 71 CrossRefGoogle Scholar.

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48. Japan does not confer citizenship on a foreign person born in the country; therefore permanent residents and others without citizenship do not have the right to vote and are thereby excluded from the electoral register. Thus, the definition of those eligible under the under Public Election Law No 100 of 1950 means that permanent residents in Japan, including the substantial Korean and Chinese minorities who are descendants of earlier immigration, are not eligible to participate in the saiban-in system.

49. Prosecution Review Commission Law, Art 2(3).

50. Art 27.

51. Art 40.

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53. ‘General situation of criminal cases in 2000’, available at http://www.kantei.go.jp/jp/singi/sihou.kentoukai.saibanin/dai2/03.pdf. See West, above n 40, for comparable figures during the 1980s.

54. Oppler, above n 33, p 105; West, above n 52; Meyers, H ‘the inquest of prosecution’ (1950) Harvard L Rev 279 CrossRefGoogle Scholar.

55. In 2003 the conviction rate in the Summary Courts was 99.85% and in the District Courts it was 99.91%. D Yasuda, ‘One aspect of criminal justice in Japan: confession’, available at http://www.law.usyd.edu.au/anjel/documents.23Feb2005Conf/Yasuda2005_OneAspectOfCriminalJusticeInJapan.pdf.

56. Oppler, above n 33, pp 227 and 248.

57. Fukurai, above n 52, at 333–344.

58. Arts 4 and 14.

59. JRC Report, above n 12, ch IV.

60. Law for Justice System Reform Promotion, Law no 119, 2001. The Investigation Committee of the Office for the Promotion of Justice System.

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64. Johnson, above n 62, p 279.

65. Oppler, above n 33, p 105; Fukurai, above n 52. This author proposes the idea of an ‘implant’ because, whereas a graft is added on to an existing body of law, an implant is inserted in a new corpus of reformed law and, in this case, transplanted as part of the post-war Occupation reform of criminal law.

66. Watson, above n 1.

67. Legrand, above n 7; Örücü, above n 10, pp 207–208.

68. Watson, above n 1; Örücü, above n 10.

69. Law for the Establishment of the Judicial Reform Council, Law No 68 of 1999.

70. JRC Report, above n 12.

71. Law for Justice System Reform Promotion, Law No 119, 2001. The Investigation Committee for the Study of Lay Assessor/Penal Matters.

72. The Law Concerning Participation of Lay Assessors Participation in Criminal Trials (Saiban-in no sanka suru keiji saiban ni kan suru horitsu) Law No 63 of 2004 (hereinafter referred to as the Lay Judge System Law). For a full translation of the Law see: K Anderson and Saint, E ‘Japan's quasi-jury (Saiban-in) law: an annotated translation of the Act concerning participation of law assessors in criminal trials’ (2005) 6 Asian-Pacific Law & Policy Journal 233 Google Scholar.

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75. At least one professional judge and one lay judge must consent to the majority. Art 67 Lay Judges Law.

76. Art 2(1)(i)and (ii).

77. Vidmar; Delmas-Marty and Spencer; Vogler and Huber, above n 73; JRC Report, above n 12, ch IV.

78. Dean, above n 21; Haley, J ‘Judicial independence in Japan revisited’ (1995) 25 Law in Japan 1 Google Scholar; Kiss, L ‘Reviving the criminal jury in Japan’ (1999) 62 Law & Contemporary Problems 261 CrossRefGoogle Scholar; Lempert, R ‘a jury for Japan’ (1992) 40 Am J Comp L 37 CrossRefGoogle Scholar; Foote, D ‘from Japan's death row to freedom’ (1992) 1 Pac Rim L & Pol'y J 11 Google Scholar.

79. JRC Report, above n 12, ch IV.

80. Arts 13 and 20–23.

81. The restrictions on citizenship mean that permanent residents from the large minority Korean and Chinese communities, as well as other permanent residents, are not eligible for jury service.

82. Arts 14 and 15. Japan has a substantial number of so-called quasi lawyers consisting mainly of judicial scriveners, patent and tax attorneys together with paralegals working in companies. Dean, above n 4, pp 269–271 and 309.

83. Art 16(i)–(vi).

84. Art 18.

85. Art 16(vii).

86. Art 41.

87. Delmas-Marty and Spencer; Vogler and Huber; Vidmar, above n 73.

88. Anderson, K and Nolan, M ‘Lay participation in the Japanese justice system: a few preliminary thoughts regarding the lay assessor system from domestic historical and international psychological perspective’ (2004) Vand J Transnat'l L 935 Google Scholar at 988.

89. Lawson, C and Thornley, S ‘Translation: perceptions of the current state of the Japanese legal system’: Interview with Koji Sato, Chairman of Japan's Judicial Reform Council’ (2002) 4 Austl J Asia L 76 Google Scholar at 80.

90. Anderson and Nolan, above n 88, at 986–989. A lay juror in the first saiban-in trial gave a press conference expressing his reservations upon being summoned but indicating positive views of his experience. Yomiuri Shimbun ‘Lay judge felt burden of duty and says jury service made him realize crime, not criminal, to be shunned’Yomiuri Daily Tokyo 10 August 2009.

91. Art 3(2) and (3).

92. The early indications are that the new Minister of Justice is in favour of the saiban-in system. Kyodo News ‘Chiba urges death penalty debate’Japan Times Tokyo 18 September 2009.

93. Haley, J ‘Judicial independence in Japan revisited’ (1995) 25 L in Japan 1 Google Scholar.

94. This provision reflects similar safeguards provided in the Criminal Justice Act 2003 which allows for non-jury trial in cases of jury tampering (ss 44 and 46). Concern to protect juries in Northern Ireland led to the introduction of non-jury trial in the context of terrorism cases but which extended to cases involving organised crime. Jackson, J and Doran, S Judge Without Jury: Diplock Trials in the Adversary System (Oxford: OUP Clarendon Press, 1995)Google Scholar . The so-called Diplock Courts eventually ceased operation in 2007 but the protection of juries and the functioning of jury trials in the context of terrorist cases are of continuing concern. Donohue, L ‘Terrorism and trial by jury: the vices and virtues of British and American criminal law’ (2007) 59 Stan L Rev 1321 Google Scholar.

95. Arts 59, 56 and 58.

96. Art 66(5).

97. One study of the German mixed jury system concluded that ‘the influence of lay judges on court decisions of guilt and punishment is minimal’. Herrmann, J ‘Models for reform of the criminal trial in Eastern Europe: a comparative perspective’ (1966) St Louis-Warsaw Transatlantic L J 127 Google Scholar at 133.

98. Art 2.

99. Art 67(2).

100. Dean, above n 4, p 372.

101. JRC Final Report, above n 12, ch IV.

102. Feeley, M and Miyazawa, S (eds) The Japanese Adversary System in Context: Controversies and Comparisons (Basingstoke: Palgrave Macmillan, 2002)Google Scholar.

103. JRC Report, above n 12, ch IV.

104. Örücü, above n 10 and 67. In the context of the transplantation of a single rule to Japanese company law, Kanda and Milhaupt use the concept of ‘fit’ to evaluate the conditions for the success or failure of a legal transplant. They accept that it is ‘virtually impossible’ to discuss the success or failure of wholesale transplants of entire bodies of law and propose that each legal rule or institution must be examined individually. They argue that the ‘fit’ between an imported rule and the host jurisdiction is crucial to the success of a transplant. H Kanda and C Milhaupt ‘Re-examining legal transplants: the director's fiduciary duty in Japanese corporate law’ (2003) 51 Am J Comp L 887 at 901. Kanda and Milhaupt's concept will be a useful analytical tool when evaluating the saiban-in system after it has been in operation for a number of years, particularly in the light of it already being recognised that adjustments may need to be made. JRC Report, above n 12, ch IV; Interview with Koji Sato, Chairman of Japan's Judicial Reform Council, above n 89.

105. Dean, above n 4, ch 5; Miyazawa, S ‘Reform in Japanese legal education: the politics of judicial reform in Japan: the rules of law at last?’ (2001) 2 Asian-Pacific Law & Policy Journal 89 Google Scholar.

106. In 2001 there were 18,246 lawyers in a country with a population of 126 million. In addition there were 2294 Public Prosecutors and 3049 judges. Dean, above n 4, p 267. The aim is to have 50,000 legal professionals by 2018. JRC Report, above n 12, ch III, Part 1.

107. Johnson, above n 62; Haley, above n 61; Ishimatsu, T ‘Are criminal defendants in Japan truly receiving trials by judges’ (1989) 22 L in Japan 143 Google Scholar; Maslen, S ‘Japan and the rule of law’ (1998) 16 UCLA Pac Basin L J 281 Google Scholar.

108. Hirano, R ‘Diagnosis of the current criminal procedure’ (1989) 22 L in Japan 129 Google Scholar at 129.

109. Hodgson, J French Criminal Justice: A Comparative Account of Investigation and Prosecution of Crime in France (Oxford: Hart Publishing, 2005)Google Scholar.

110. Ishimatsu, above n 107.

111. The move from the traditional inquisitorial system to one which is more adversarial is an identifiable trend in Europe which reflects changing attitudes about the relationship of the individual to government and society. G van Kessel ‘European trends towards adversary styles in criminal procedure and evidence’ in Feeley and Miyazawa, above n 102. This is particularly so in France where in January 2009 the President announced plans to abolish the investigating magistrate (juge d'instuction) in order to bring the French criminal justice system in line with the Anglo-American system. J Lichfield ‘Sarkozy goes to war with Napoleon's legal legacy’The Independent London, 7 January 2009. The Committee set up by the President to consider reform of the criminal justice system was chaired by a former senior judge, Philippe Léger, and has recommended the abolition of the investigating magistrate. Following extensive consultation the reform process will culminate with an overhaul of the Penal Code and the Code of Criminal Procedure. ‘Mis en place par Nicholas Sarkozy pour réfléchir sur la réforme de la procédure pénal, la comité Léger a rendu ses positions. Il préconise notamment la suppression du juge d'instruction, une mesure déjà annoncée en janvier par le chef de l'Etat’. La Tribune Paris, 1 September 2009.

112. Code of Criminal Procedure Art 292–2. The Law on Crime Victims was passed in 2004 Law no 161 of 2004.

113. Arts 58 and 59 of the Lay Judge System Law.

114. Foote, above n 47.

115. Johnson, above n 62.

116. D Johnson ‘Justice system reform in Japan; where are the police and why does it matter’, available at http://www.law.usyd.edu.au/anjel/documents/ResearchPublications/Johnson2004_JusticeSystemReform.pdf 7. Police coercion is facilitated by the absence of defence lawyers during questioning and no provision for police interviews to be recorded. A Murayama ‘The role of the defence lawyer in the Japanese criminal process’ in Feeley and Miyazawa (eds), above n 102; for its part the JRC only proposed that there should be written records of interviews. Art 38 Constitution of Japan.

117. Art 37(3) of the Constitution states that ‘At all times the accused shall have the assistance of competent counsel who shall, if the accused is unable to secure the same by his own efforts, be assigned to his use by the State’.

118. Murayama, above n 116; T Takano ‘The Miranda experience in Japan’ in Feeley and Miyazawa (eds), above n 102.

119. The new Chairman of the National Public Safety Commission has indicated a willingness to move towards introducing the tape-recording of police interviews. Kyodo News ‘Crime tools backed’Japan Times Tokyo, 18 September 2009.

120. Miyazawa, above n 8; Maxeinerand, J and Yamanaka, K ‘the new Japanese law schools: putting the professional into legal education’ (2004) 13 Pac Rim L & Pol'y J 303 Google Scholar. Jackson and Doran's research into both jury and non-jury trials in the Northern Ireland Diplock courts concluded that counsel clearly directed different arguments towards judges and juries, although there was no marked difference in the way they chose to present the evidence, above n 94, p 289. This suggests that legal education and training in Japan will in future need to take account of the need to ensure lawyers develop new advocacy skills attuned to the requirements of the new saiban-in trial procedure.

121. Murayama, above n 116.

122. Johnson, D ‘Japan's secretive death penalty policy: contours, origins, justifications and meanings’ (2006) 7 Asian-Pacific Law & Policy Journal 62 Google Scholar.

123. Schmidt, P Capital Punishment in Japan (Leiden: Brill, 2002)Google Scholar.

124. A v Japan 2 Keishu 3 191 (Sup Ct 1948); Schmidt, above n 123, pp 91 and 99.

125. A former Supreme Court judge has spoken of opposition to the death penalty, while at the same time acknowledging that it remains on the statute books and therefore impossible to avoid when requested by the prosecution. Dando, S ‘towards the abolition of the death penalty’ (1996) 72 Ind L J 7 Google Scholar.

126. Anderson and Nolan, above n 88, at 963–964; Maruta, T ‘the criminal jury system in imperial Japan and the contemporary argument for its reintroduction’ (2001) 72 Rev Int'l Droit Penal 215 Google Scholar at 216.

127. In her first news conference after the elections, the newly appointed Minister of Justice indicated that there now needs to be a wide-ranging public debate on the possible abolition of the death penalty, Japan Times, above n 92.

128. Örücü, above n 10; Ogus, above n 11; Miller, above n 11; Kanda and Milhaupt, above n 104.

129. The first jury trial took place in August 2009. The defendant was convicted of murder and sentenced to 15 years imprisonment. Kyodo News ‘First lay judges hand killer 15-year term’Japan Times Tokyo, 7 August 2009; S Kamiya ‘First lay judge trial kicks off in Tokyo’Japan Times Tokyo, 4 August 2009.