🏯Japanese Law and Government Unit 6 – Civil and Commercial Law in Japan

Historical Background

• Japan's legal system has been influenced by various foreign legal systems throughout history, including Chinese law during the 6th to 8th centuries and European civil law in the late 19th century
• The Meiji Restoration in 1868 marked a significant turning point in Japan's legal history, as the country began to modernize its legal system based on Western models
• During the Meiji period (1868-1912), Japan adopted a civil law system, primarily influenced by the German and French legal systems
• The Constitution of the Empire of Japan, also known as the Meiji Constitution, was promulgated in 1889, establishing a constitutional monarchy and a modern legal framework
  • The Meiji Constitution remained in effect until 1947, when it was replaced by the current Constitution of Japan following World War II
• The post-World War II period saw significant reforms in Japan's legal system, including the adoption of a new constitution and the establishment of an independent judiciary
• The Japanese legal system has continued to evolve, incorporating elements of common law and adapting to changing social and economic conditions

Key Legal Concepts

• The principle of the rule of law is a fundamental concept in the Japanese legal system, ensuring that all individuals and entities, including the government, are subject to the law
• The concept of legal equality is enshrined in the Japanese Constitution, guaranteeing equal rights and protections under the law regardless of race, gender, social status, or other factors
• The principle of pacifism, as outlined in Article 9 of the Japanese Constitution, renounces war and the use of force as a means of settling international disputes
  • This principle has had a significant impact on Japan's foreign policy and defense strategy
• The concept of judicial independence is crucial to the Japanese legal system, ensuring that judges can make decisions based on the law and evidence without undue influence from other branches of government or external factors
• The principle of the separation of powers divides the government into three branches: the legislative (Diet), executive (Cabinet), and judiciary (courts), each with distinct roles and responsibilities
• The concept of legal precedent, while not as binding as in common law systems, plays a role in the Japanese legal system, with lower courts often following the decisions of higher courts in similar cases
• The principle of the presumption of innocence is a fundamental right in the Japanese legal system, requiring that an accused person be considered innocent until proven guilty beyond a reasonable doubt

Civil Law in Japan

• Civil law in Japan governs the rights and obligations of private individuals and entities in their relationships with one another
• The Civil Code of Japan, enacted in 1896 and heavily influenced by the German Civil Code, is the primary source of civil law in the country
  • The Civil Code consists of five books: General Provisions, Real Rights, Obligations, Family, and Inheritance
• The law of obligations, which falls under the Civil Code, deals with contracts, torts, and unjust enrichment
  • Contract law in Japan is based on the principle of freedom of contract, allowing parties to enter into agreements freely, subject to certain limitations
  • Tort law provides remedies for individuals who have suffered harm due to the intentional or negligent actions of others
• Family law, also governed by the Civil Code, regulates matters such as marriage, divorce, adoption, and parental authority
  • Recent amendments to the Civil Code have aimed to promote gender equality in family law, such as allowing married couples to use separate surnames
• The law of property, including ownership, possession, and transfer of real estate and personal property, is governed by the Civil Code's provisions on real rights
• The law of inheritance, which determines the distribution of a deceased person's assets, is also covered by the Civil Code
  • Japan's inheritance law is based on the principle of universal succession, meaning that heirs inherit both the assets and liabilities of the deceased

Commercial Law Overview

• Commercial law in Japan regulates the rights, obligations, and conduct of businesses and commercial transactions
• The Commercial Code of Japan, enacted in 1899, is the primary source of commercial law in the country
  • The Commercial Code is divided into five books: General Provisions, Commercial Transactions, Corporations, Insurance, and Maritime Commerce
• Company law, which is part of the Commercial Code, governs the formation, operation, and dissolution of various types of business entities, such as joint-stock companies (Kabushiki Kaisha) and limited liability companies (Godo Kaisha)
  • The Companies Act of 2005 modernized and consolidated the legal provisions related to company law
• The law of commercial transactions, also covered by the Commercial Code, regulates various types of commercial contracts, such as sales, transportation, and warehousing
• Intellectual property law, including patents, trademarks, and copyrights, plays a significant role in Japanese commercial law, protecting the rights of creators and innovators
  • Japan is a signatory to various international treaties on intellectual property, such as the Paris Convention and the Berne Convention
• Competition law, primarily governed by the Antimonopoly Act, aims to promote fair competition and prevent monopolistic practices in the Japanese market
  • The Japan Fair Trade Commission is responsible for enforcing competition law and regulating mergers and acquisitions
• Consumer protection law, including the Consumer Contract Act and the Product Liability Act, safeguards the rights and interests of consumers in commercial transactions
• The law of secured transactions, such as pledges and mortgages, is essential for facilitating credit and financing in commercial activities

Major Legislation and Codes

• The Constitution of Japan, promulgated in 1946, is the supreme law of the land and provides the foundation for the country's legal system
  • The Constitution guarantees fundamental human rights, establishes the separation of powers, and outlines the roles of the various branches of government
• The Civil Code of Japan, enacted in 1896, is the primary source of civil law in the country, governing matters such as property, contracts, torts, family law, and inheritance
  • The Civil Code has undergone several amendments over the years to adapt to changing social and economic conditions
• The Commercial Code of Japan, enacted in 1899, is the main source of commercial law, regulating business entities, commercial transactions, and other aspects of commercial activity
  • The Companies Act of 2005 has largely superseded the provisions of the Commercial Code related to company law
• The Penal Code of Japan, enacted in 1907, is the primary source of criminal law, defining various offenses and their corresponding punishments
  • The Code of Criminal Procedure, enacted in 1948, outlines the procedures for criminal investigations, trials, and appeals
• The Labor Standards Act, enacted in 1947, is the fundamental law governing labor relations and working conditions in Japan, setting standards for working hours, minimum wages, and occupational health and safety
• The Antimonopoly Act, enacted in 1947, is the primary competition law in Japan, prohibiting unfair trade practices and regulating mergers and acquisitions to promote fair competition
• The Civil Procedure Code, enacted in 1996, governs the procedures for civil litigation in Japanese courts, including the filing of lawsuits, the presentation of evidence, and the enforcement of judgments
• The Administrative Case Litigation Act, enacted in 1962, provides the legal framework for challenges to administrative actions and decisions in Japan's courts

Court System and Legal Procedures

• Japan's court system is divided into four tiers: the Supreme Court, high courts, district courts, and summary courts
  • The Supreme Court is the highest court in Japan and has the power of judicial review, allowing it to determine the constitutionality of laws and government actions
  • There are eight high courts, which serve as appellate courts for cases decided by district courts
  • District courts are the primary courts of first instance for most civil and criminal cases, with 50 district courts throughout the country
  • Summary courts handle small claims, minor criminal offenses, and civil conciliation proceedings
• Judges in Japan are appointed by the Cabinet and are guaranteed independence under the Constitution
  • Judges are typically recruited from among legal professionals who have completed a rigorous training program at the Legal Training and Research Institute
• Japan has a civil law system, meaning that the primary sources of law are statutes and codes, rather than judicial precedents
  • However, Supreme Court decisions have a strong persuasive effect on lower courts and are often followed in practice
• Civil procedure in Japan is governed by the Civil Procedure Code, which emphasizes the importance of written submissions and documentary evidence
  • Trials are generally conducted by a single judge, although a panel of three judges may be used in more complex cases
• Criminal procedure in Japan is governed by the Code of Criminal Procedure, which provides for an adversarial system of justice
  • Suspects have the right to remain silent and to be represented by counsel, and the burden of proof rests on the prosecution to establish guilt beyond a reasonable doubt
• Alternative dispute resolution (ADR) methods, such as mediation and arbitration, are increasingly being used in Japan to resolve civil disputes outside of the court system
  • The Arbitration Law of 2003 has made arbitration a more attractive option for resolving commercial disputes, particularly in international transactions

Recent Developments and Reforms

• In recent years, Japan has undertaken various legal reforms to modernize its legal system and address changing social and economic needs
• The Justice System Reform Council, established in 1999, has played a key role in proposing and implementing reforms to the legal system
  • One of the major outcomes of the Council's work was the introduction of the lay judge system in 2009, which allows citizen participation in certain criminal trials
• The Intellectual Property High Court was established in 2005 as a specialized court to handle intellectual property cases, reflecting the growing importance of IP rights in Japan's economy
• Reforms to the Civil Code in 2017 and 2018 have aimed to modernize family law and inheritance law, promoting gender equality and reflecting changes in social attitudes
  • For example, the minimum age of marriage was raised to 18 for both men and women, and the period of prohibition on remarriage after divorce was shortened
• Amendments to the Commercial Code and the Companies Act have sought to improve corporate governance and transparency, in response to high-profile corporate scandals and the need to attract foreign investment
  • The 2019 amendments to the Companies Act introduced measures to strengthen the role of outside directors and to enhance shareholder rights
• Efforts to promote alternative dispute resolution have led to the growth of mediation and arbitration in Japan, particularly in the areas of family law and commercial disputes
  • The 2019 amendments to the Act on Promotion of Use of Alternative Dispute Resolution have aimed to further encourage the use of ADR methods
• The increasing internationalization of Japan's economy has led to a greater focus on cross-border legal issues and the need for legal professionals with international expertise
  • The government has launched initiatives to promote the development of globally-minded legal professionals, such as the "Super Global University" program

Practical Applications

• Understanding civil law concepts, such as contract law and tort law, is essential for individuals and businesses engaging in transactions or seeking remedies for harm suffered
  • For example, a small business owner entering into a supply contract with a larger company should be aware of their rights and obligations under the Civil Code
• Familiarity with commercial law is crucial for entrepreneurs and business managers operating in Japan, as it governs the formation and operation of companies, as well as commercial transactions
  • A foreign investor looking to establish a subsidiary in Japan would need to navigate the requirements of the Companies Act and other relevant commercial laws
• Knowledge of intellectual property law is vital for creators, innovators, and businesses seeking to protect their ideas and inventions in Japan
  • A software developer applying for a patent on a new algorithm would need to understand the requirements and procedures under Japan's Patent Act
• Awareness of consumer protection laws is important for both consumers and businesses engaged in retail or service industries
  • A consumer who has purchased a defective product would need to know their rights under the Consumer Contract Act and the Product Liability Act
• Understanding the court system and legal procedures is necessary for individuals and businesses involved in legal disputes or seeking to enforce their rights
  • A landlord seeking to evict a tenant for non-payment of rent would need to follow the procedures outlined in the Civil Procedure Code
• Familiarity with alternative dispute resolution methods can be beneficial for parties seeking to resolve conflicts outside of the court system, often saving time and costs
  • A divorced couple unable to agree on child custody arrangements may choose to participate in family mediation to reach a mutually acceptable solution
• Staying informed about recent legal developments and reforms is important for legal professionals, businesses, and individuals to ensure compliance with current laws and to take advantage of new opportunities
  • A company looking to improve its corporate governance practices would need to be aware of the latest amendments to the Companies Act and other relevant regulations