Proposal Concerning Reform of the Saiban-in (Lay Judge) Trial System for the Post Third Year Review of the Implementation of the Saiban-in Act
[Opinion Papers Compiled in the Proposal]
- Opinion Paper on the Criminal Trial Procedures in which Saiban-in Participate
- Opinion Paper on Reducing the Burden on Saiban-in
- Opinion Paper on Requirements for Judgments rendering the Death Sentence
- Opinion Paper on Saiban-in Trials of Juvenile Cases Referred from Family Courts
- Legislative Proposal on Amendment of the Confidentiality Provisions of the Saiban-in Act
- Proposal Calling for Establishment of a Verification Institute to Review the Saiban-in System
March 15, 2012
Japan Federation of Bar Associations
About the Proposal
Article 9 of the Supplementary Provisions of the Act on Criminal Trials Examined under the Lay Judge System (hereinafter referred to as the “Saiban-in Act”) stipulates that “The implementation of this Act shall be reviewed three years after its enforcement, and when it is found to be necessary, appropriate measures shall be taken, based on the results of the review, in order to ensure that the criminal trial system in which Saiban-in (lay judge) participate sufficiently fulfills its role as a foundation of the Justice System in Japan.” On May 21, 2012, three years will have passed since the Saiban-in Act came into effect, and prior to this day, the Japan Federation of Bar Associations (JFBA) compiled a proposal from six opinion papers, entitled, the “Proposal Concerning Reform of the Saiban-in (Lay Judge) Trial System for the Post Third Year Review of the Implementation of the Saiban-in Act” on March 15, 2012 and submitted the same to the Minister of Justice on March 22, 2012.
Summary of the Proposal
1. Opinion Paper on the Criminal Trial Procedures in which Saiban-in Participate
Based on the current state of implementation of the Saiban-in Act and the revised Code of Criminal Procedure, these laws should be revised in regard to the matters listed below in order to ensure that the Saiban-in system sufficiently performs its role as a foundation of the Justice System in Japan.
(i) Expansion of the scope of cases subject to Saiban-in trials to include cases in which there are issues involving the charged facts or other matters
(ii) Amendment of the provisions concerning disclosure of evidence during pretrial arrangement proceedings
(iii) Amendment of the law to confer on the defendant the right to request a pretrial arrangement proceeding
(iv) New provisions to divide the criminal trial procedure into two phases for cases in which there are issues involving the charged facts or other matters
(v) Amendment of the provisions concerning the explanations provided to Saiban-in and supplementary Saiban-in (hereinafter, collectively referred to as “Saiban-in, etc.”)
(vi) Amendment of the requirements concerning the rendering of decisions in Saiban-in trials
2. Opinion Paper on Reducing the Burden on Saiban-in
New provisions should be added to the Saiban-in Act stipulating measures to be taken to reduce the emotional burden on Saiban-in, etc. In addition, new provisions should be also added to the Rules on Criminal Trials Examined under the Lay Judge System concerning the matters to be explained to Saiban-in, etc. in order to reduce their emotional burden.
3. Opinion Paper on Requirements for Judgments rendering the Death Sentence
With the beginning of the Saiban-in system as a turning point, the requirements to be met in order to render a judgment handing down the death sentence, the ultimate punishment which deprives a defendant of their life, should be reviewed and the Court Act and the Saiban-in Act should be amended so as to require the unanimous consent of the panel in order to render the death sentence.
4. Opinion Paper on Saiban-in Trials of Juvenile Cases Referred from Family Courts (January 19, 2012）
Considering the examination in Saiban-in trials of juvenile cases sent back to the prosecutor's office from family courts, new provisions should be added to the Code of Criminal Procedure and the Saiban-in Act in line with the philosophies of the Juvenile Act, including a guarantee of the right to growth and development and the right to privacy. Furthermore, the philosophical stance of scientism should be expressed in the Code of Criminal Procedure and the Saiban-in Act. In addition, new provisions should be added to the Saiban-in Act in order to ensure that the philosophies of the Juvenile Act and the provisions particular to juvenile cases will be instructed in open court.
5. Legislative Proposal on Amendment of the Confidentiality Provisions of the Saiban-in Act (June 16, 2011)
Regarding the provisions concerning confidentiality in the Saiban-in Act, the penal provisions for breaches of confidentiality should be amended so as to limit the scope of acts subject to punishment. Furthermore, new provisions should be added to stipulate certain acts which are to be excluded from the confidentiality obligations if such acts have been carried out for the purpose of research and study of the operation of the Saiban-in system.
6. Proposal Calling for Establishment of a Verification Institute to Review the Saiban-in System (November 19, 2008)
A verification institute should be established in order to review the implementation of the Saiban-in system as well as to propose necessary actions for legislative or operational improvement of the Saiban-in system. Such new institute should be composed of experts, judges, prosecutors and attorneys.
