Justice System Reform
The JFBA has issued eleven "declarations on judicial reform" since 1990 as part of its goal to achieve "justice for the people" in which the justice system is more familiar and accessible to its users, the general public. The government established the Justice System Reform Council, which issued the Recommendations calling for fundamental reforms in 2001.
The reforms articulated in the said Recommendations aimed to realize, in the true sense, respect for individuals and popular sovereignty, on which the Constitution of Japan is based, and to ensure that the rule of law would prevail throughout society. The Recommendations intended to reinforce judicial functions which protect people's rights and maintain and develop the law. Furthermore, they pursued the transition from "small-scale justice" to "large-scale justice" by improving institutional bases for making them easier to use, enhancing human resources to be legal professionals who support people's lives, and advancing participation of citizens in justice, in order to establish democratic bases for the judicial system.
These recommendations, together with subsequent discussions in the Office for Promotion of Justice System Reform established within the Cabinet resulted in the passage of 24 laws related to justice system reform by the end of 2004, followed by actions to realize such reforms.
Specific judicial reforms are mentioned below.
In 2004, the "Comprehensive Legal Support Law" was enacted to expand access to legal services for the public, which is one of the main pillars of the judicial reform, under the basic principle of "creating a society where necessary information and services for legal solutions of disputes are universally available throughout Japan," and obliging the government to organize a system that secures such access to legal services. Under this law, the Japan Legal Support Center was established according to the frameworks of an independent administrative institution, and commenced operations in October 2006. It is engaged in various activities to expand access to legal services, mainly involving legal aid for civil and criminal cases.
Prior to the establishment of the Center, civil legal aid services were provided by the Japan Legal Aid Association established under the initiative of the JFBA with subsidies by the government, and criminal legal aid was provided by the courts with government funding, only for defendants. The Japan Legal Support Center assumed these services and expanded the scope of operation, and for criminal cases, the scope of services has been extended to suspects in serious cases.
The Center provides the citizens with legal information and contact information for institutions providing consultations through the establishment of call centers (information services), and aims to improve access to legal services in communities with shortages of attorneys through the establishment of law offices with assigned staff attorneys (correction of regional shortages of attorneys). In addition, it introduces various support systems to crime victims (crime victim support services).
The JFBA supports the legal aid services of the Japan Legal Support Center through securing attorneys who will engage in the services listed above under an agreement with the Center, and through various working-level discussions regarding the service standards of the Center.
While traditionally the courts have been run exclusively by professional judges in Japan, the JFBA has long proposed a system that would allow ordinary citizens to participate in the judicial process. The Recommendations of the Justice System Reform Council stated that one of the purposes of recent justice system reforms is to reposition the public as actors, not bystanders, in governance. As part of this, Japan has introduced the Saiban-in (lay judge) System since May 2009 under which, as a rule, six lay judges will be chosen to serve alongside three professional judges in examining cases involving certain serious crimes. Lay judges participate in criminal trials, determine facts, and decide sentences with an authority equivalent to that of professional judges.
The system is similar to a jury system in that lay judges are chosen at random from voter lists and appointed to serve on specific cases. It also resembles a lay judge (Schöffe or échevin) system in that citizens participate in trials alongside professional judges. Historically, large numbers of written statements produced by investigators based on interrogations of suspects have been used as material evidence in Japanese criminal courts. However, for the Saiban-in system to run smoothly, it is essential that an easily understandable examination of the evidence with a focus on the questioning of witnesses before the court is realized, and that deliberations in which lay judges are able to actively and effectively voice their opinions are guaranteed.
The JFBA is studying how to improve the Saiban-in system by reviewing current practices of criminal procedures and defense under this system. The JFBA is also engaged in activities to foster an understanding of the importance of the Saiban-in System among the public.
The Justice System Reform Council proposed in its Recommendations to expand the area of activities and to increase the population of legal professionals to 50,000 by 2018, through organization of a new professional legal training and education system centering on graduate-level law schools and by increasing the number of successful bar examination applicants to 3,000 per year by 2010, in order to make the rule of law penetrate into every corner of society. In response to the proposal, the government has increased the number of legal professionals, aiming to secure 3,000 successful bar examination applicants per year by 2010 (total number of legal professionals has increased from about 17,000 in 1991 to 31,000 in 2009).
The JFBA has gone to great lengths to maintain and improve the quality of legal professionals, while also preparing for the increase in its population to 50,000, to ensure that the citizens will be provided with the necessary number of legal professionals. However, the new professional legal training and education system centering on the law school has yet to mature, and concerns have been raised over the quality of newly admitted legal professionals. In addition, progress in the establishment of the foundation of the system, such as expansion of the civil legal aid service, has been slow, and we cannot claim that large needs for legal services by the citizens have been elicited. Furthermore, while significant increase in judges and public prosecutors was intended, the increase did not parallel the increase in the number of successful bar examination applicants, and only the number of attorneys has grown dramatically. In addition, the government's commitment towards expansion of the areas of activities for legal professionals has not made progress. Therefore, the JFBA has requested relevant organizations make stronger commitments, and announced an opinion on March 18, 2009 stating that considering the fact that it will take a number of years for improvement and reform on various issues to be seen, the population of legal professionals should be decided through a careful and strict determination of the number of successful bar examination applicants for a few years from FY2009, keeping in mind the current figure of 2,100 to 2,200 per year.
The judicial reform aimed to shift the focus of professional legal training and education from selection through the single event of the bar examination to the establishment of a professional legal training and education system which provides a broader process through organic coordination of legal education, bar examination and legal apprentice training. In 2004, first graduate-level law schools were opened to assume the central role in the reform as educational institutions specializing in professional legal training and education. There were 68 law schools at the beginning of the system, with 6 schools opening the following year, and the 74 law schools are operating to date.
In general, three years of legal education, or two years for those with legal education at the undergraduate level, is required to complete law school. Graduating from a law school is a prerequisite to sit for the new bar examination that commenced in 2006 (For further details, see II-2. "Attorney Qualifications").
In law schools, approximately 1,500 attorneys are engaged in legal training as practitioner teaching staffs. The JFBA established the Committee on Law School in 2000, and created the Office for Legal Education in 2003 to enhance law school education and support practitioner teaching staffs. The JFBA also submits its consideration and proposals concerning law schools and the bar examination in order to strengthen the new professional legal training and education system with the law school as its core.
The main legal training after passing the bar examination is the apprenticeship conducted in the District Courts, District Public Prosecutors' Offices, and local bar associations throughout Japan.
The JFBA has established the Legal Apprentice Training Committee to support the local bar associations to ensure that they can offer a well-developed legal apprentice training which is able to respond to the significant increase in the number of apprentices.
From 2009, various improvements and reforms on the criminal justice system have been implemented such as the significant expansion of the scope of the court-appointed attorney system for suspects, enhancement of the disclosure of evidence, and realization of active trials by enhancing oral argument and direct participation. In addition, various other reforms are being implemented, including reforms of the administrative litigation system such as enlargement of standing, reforms of the intellectual property system such as the establishment of the Intellectual Property High Court, reform of the system concerning judges such as appointment and evaluation of judges, establishment of a system where judges and public prosecutors experience other professions, liberalization of profit-earning activities of attorneys, deregulation of legal fees, reform of the attorney system including improvement of the disciplinary system, establishment of the labor adjudication system, and improvement of the ADR system.
However, more reforms reflecting the principles and contents of the Justice System Reform Council's Recommendations must be solidly implemented in various areas, including the enhancement of access to the judicial system such as the fundamental reform of the civil legal aid system, reform of the civil justice system to make it more user-friendly and to enhance the rights of parties, reform of the administrative litigation system, reform of the criminal justice system including electronic recording of interrogations, improvement of the professional legal training and education system, reform of the judge system including promotion of appointment of attorneys as judges, and expansion of areas of activities for attorneys.