Summary of Contents
1. GENERAL INFORMATION
1.1. Form of government
Japan is a unitary state and its government is a constitutional monarchy. The government was established under the sovereignty of the people and the independence of the three branches of government – legislative, administrative and judicial powers – was emphasized. Additionally, the Cabinet was established to be the main body to exercise administrative power within the basic framework of the Parliamentary Cabinet system.
1.2. Demographics, ethnic groups, languages and religion
The total population of Japan was 126.23 million people as of June 1, 2019.
Japan’s population has begun to decline notably since 2010. The number of the population aged 65 and over is 35.15 million.  Japan now has an aging rate of 27.7%, and is categorized as a super-aged society. Japan is currently the most aged society in the world.
1.2.2. Ethnic groups
The number of mid to long-term foreign residents in Japan was 2,511,567, and the number of foreign special permanent residents was 317,849 as of June 2019. Adding these two numbers together, the total number of foreign residents was 2,829,416, an increase of 522,028 (22.6%) compared to June 2016.
Regarding, the number of foreign residents by nationality/region as of June 2019, China marked the largest number at 786,241, accounting for 27.8% of the total. China was followed by Republic of Korea at 451,543 (16.0%), Vietnam at 371,755 (13.1%), the Philippines at 277,409 (9.8%), and Brazil at 206,886 (7.3%).
The Ainu people are an indigenous people who have lived around the northern part of the Japanese Archipelago, especially in Hokkaido, with a unique language as well as religious and cultural distinctiveness. The population of Ainu people living in Hokkaido is estimated at about 17,000, or 0.4% of the region’s total, according to the 2013 survey by the Hokkaido prefectural government.
In 2019 Japan enacted legislation aimed at protecting and promoting the culture of the Ainu ethnic minority through financial assistance, while at the same time stipulating for the first time that they are an indigenous people.
The official language is Japanese.
Shinto and Buddhism are Japan’s two major religions. The two religions have co-existed relatively harmoniously and have even complemented each other to a certain degree.
1.3. Gross domestic product (GDP) for the last ten years.
GDP (Billion Yen, Figure in parentheses is billion USD, 1 USD = 110 Yen):
1.4. Gross national income at purchasing power parity per capita GNI (PPP)
GNI (PPP) per capita in 2018 is 44,420.
1.5. Inequality index and poverty line (percentage of population deemed to be living in poverty)
Inequality Index 2018; Japan’s ranking per pillar, and overall:
|Spending on health, education and social protection||Progressivity of tax policy||Labour rights and minimum wages||Overall CRI rank|
The poverty rate was 15.7% as of 2015.
1.6. Life expectancy at birth
The average life expectancy of both men and women in the country hit a new record in 2018. The average life expectancy of women in Japan increased to 87.32 years, up 0.05 from 2017. For men, the number rose to 81.25, 0.16 higher than in 2017. Japan has been at or near the top of the list for decades.
1.7. Expected years of schooling, mean years of schooling, and Human Development Index (HDI)
Human Development Index and its components of Japan:
|HDI Rank||Human Development
|Gross national income
(GNI) per capita
|2017||Value||(years)||(years)||(years)||(2011 PPP $)||2016|
2. LEGAL SYSTEM
2.1. The type of legal system
The type of legal system is mainly civil law, but judicial precedents are increasingly important.
2.2. The form of organization of the justice system
Japan has a unified national justice system with multiple levels of courts – e.g. the Supreme Court（最高裁判所）, High Courts（高等裁判所）, and District Courts（地方裁判所）.
Chart 1. Organizational chart of the justice system
2.3. Parallel/informal justice structures (e.g. informal, customary, religious, indigenous)
Japan has a unified national justice system and there are no parallel/informal justice structures.
2.4. The structure of the legal profession
Lawyers are mainly attorneys (bengoshi) and judicial scriveners (shihoushoshi).
In order to qualify as an attorney, usually after completing a law school curriculum, one must pass the National Bar Examination (shihoushiken), and complete an apprenticeship at the Legal Training and Research Institute. It is necessary to belong to one of the local bar associations.
The law school system was introduced in 2004, and the law course takes three years in general, or two years for those with basic knowledge of legal studies. Those who are unable to attend law school due to financial difficulties or other reasons may sit for the bar examination by passing a preliminary test (yobi-shiken) introduced in 2011, which is open for anyone to apply. Anyone who passes the bar examination can be qualified to the legal profession, after completing a one-year apprenticeship, in which they need to pass the final qualifying examination at the Legal Training and Research Institute of the Supreme Court. The main parts of the apprenticeship are conducted by the District Courts, District Public Prosecutors’ Offices, and local bar associations throughout Japan.
Only a practicing attorney has the right to represent a party in court.
Judicial scriveners generally are not allowed to represent a party in court. The role of judicial scriveners is mainly registration of real estate and preparation of judicial documents, which are to be submitted to courts. From 2002, certified judicial scriveners are allowed to represent a party in summary courts.
In order to qualify as a judicial scrivener, it is necessary to pass an examination.
Non-lawyers are not allowed to become managers of a firm (Legal Disciplinary Practice (LDP)). Organization that combine the delivery of reserved legal activities with other legal and other professional services such as accountancy and law(Multi-Disciplinary Practice (MDP) already exist, but the ethical independence of lawyer of MDP is not properly regulated.
2.4.1. The number of licensed practicing lawyers
The total number of licensed practicing attorneys was 41,118 (as of March 2019). The number of females is 7,717 (18.8%).
Japan is achieving a substantial increase in the number of licensed attorneys. In 2005, Japan had 21,185 licensed practicing attorneys, which nearly doubled to 41,118 by 2019.
2.4.2. Are the fees charged by practicing lawyers affordable for the general public?
The practicing lawyer’s fee is a major problem for ordinary people who have legal problems. In various surveys, the fee problem is always ranked high as an obstacle of access to justice for ordinary people.
The bar associations had established the Standards for Lawyer’s Fees, which was abolished in 2004, because of deregulation and anti-trust/fair competition issues. Thereafter, each practicing lawyer has to set his/her own fee schedule.
In case of disputes for ordinary people, most practicing lawyers charge clients on the basis of an initial retainer fee/contingent fee schedule, where the lawyers charge (1) an initial retainer fee when they take up the case and (2) a contingent fee when the case is finished successfully. This method of charging is said to have sometimes functioned as an alternative means of legal aid, if lawyers take up the case with lower initial retainer fees or without initial retainer fees (however, charging higher contingent fee, when the case is successful).
Currently, many practicing lawyers have established Internet homepages and publicize their legal fees. Reflecting severe competition among practicing lawyers, some lawyers (but, seemingly, not the majority of lawyers) openly offer free initial consultation and no initial retainer fees for taking up a case. However, a no-initial-retainer-fee schedule may be used only where a monetary contingent fee is foreseeable.
As to the lawyer’s fees in connection with access to justice, it should be noted that the principle is that each party has to bear his/her own lawyer’s fee, irrespective of the result of the case, except for very limited types of litigation, where some portion of the lawyer’s fee can be recovered by the prevailing party.
During the review period for the judicial reform (around 1999~2004), as to the lawyer’s fee, the introduction of the “defeated-party-bears” system (i.e., the prevailing party is entitled to recover its lawyer’s fee from the defeated party) was proposed mainly by the Ministry of Justice and the business world, which alleged that the system could reduce abusive claims and achieve fairness in the burden of litigation costs. The bar associations and the consumer groups strongly opposed such proposal, because such system would discourage and have a chilling effect on access to the courts for ordinary people. After a long battle, such proposal was withdrawn.
2.4.3. Is legal representation by a lawyer mandatory in your country’s justice system?
It is not mandatory in Japan.
2.4.4. Is representation by paralegals permitted in your country’s justice system?
There is no definition of paralegals in Japan.
Representation other than attorneys is not permitted in Japan except for limited cases (see section 2.4 above).
Representation by paralegals is not permitted in Japan.
2.5. Career of judges
Based on the Western concept of the separation of powers, and to provide for checks and balances among the Diet, Cabinet and Courts, the Courts are independent of the other branches of government, as guaranteed by the Constitution of Japan.
Assistant judges are appointed from among people who have passed the National Bar Examination, completed training at the Legal Training and Research Institute, and then passed the final qualifying examination. Not a few newly appointed assistant judges are recruited by mentor judges while serving as apprentices at the Legal Training and Research Institute.
Most judges are appointed from among assistant judges, while a limited number of judges are former public prosecutors, attorneys, and professors of law, with at least ten years’ experience in their profession.
As for summary court judges, those who have been the president of a high court or judges, or those who have practiced law for three years or more as assistant judges, public prosecutors, or attorneys, may be appointed. In addition, people of sound common sense, other than qualified jurists, who have long experience in judicial practice or academic experience necessary for the professional duties of a summary court also may be appointed.
Because summary court handles small claims and much more simple cases compared with district court. Therefore it is difficult to appoint only career judges to nationwide in Japan and it might be better to appoint suitable person to make summary court much more friendly.
The term of judges is 10 years. The judges are usually reappointed upon the expiration of each ten year term. Judges are appointed based on the recommendation of the Lower Court Appointment Advisory Committee (kakyu saibannsyo saibankan simon iinnkai) of the Supreme Court.
There are part-time judicial officers (called “conciliators” or chotei-kan in Japanese), who settle civil and family relations disputes through conciliation proceedings, in which they have the same level of authority as a judge. They are appointed from among attorneys with at least five years’ experience in practice.
There were 2,724 judges as of 2019 (excluding summary court judges). The ratio of female judges is 26.7 per cent.
The official age of retirement is 65 in general except that it is 70 for Supreme Court Judges and summary court judges.
A judge cannot be transferred without his or her consent. However, in practice, judges are usually transferred to another court every three years with their consent.
2.6. Career of public prosecutors
Whether seeking to qualify as a public prosecutor, judge or attorney, all aspirants must complete a law school curriculum in principle, pass the bar examination, and complete an apprenticeship at the Legal Training and Research Institute. Since they all complete the same legal apprentice training a, it is possible for a prosecutor to become a judge or an attorney and vice versa. Not a few newly appointed prosecutors are recruited by mentor prosecutors, while serving as apprentices at the Legal Training and Research Institute.
Once appointed as prosecutors after completing the Legal Training and Research Institute, the qualifications required are the same as those required of an assistant judge. Unlike public prosecutors in Western countries, public prosecutors in Japan fall within the system of lifetime employment. Public prosecutors as a whole have the exclusive power to institute prosecution, and this is why they are placed under the general supervision and control of the Minister of Justice. However, the Minister may only direct the Prosecutor-General with regard to the investigation or disposition of any individual case.
There were 2,767 prosecutors in Japan as of 2018.
3. PROCESS AND PROCEEDINGS: OVERVIEW
3.1. Criminal Procedure
3.1.1. Main steps of criminal investigation process and paths to be adopted at the end
・Authority responsible for criminal investigation: The main investigative authorities consist of police officers and public prosecutors. Police officers are the primary investigative authority and thus represent the main power.
・Arrest: Three types of arrest are defined as follows under the code of criminal procedure:
(i) an ordinary arrest based on a warrant issued by a judge in advance;
(ii) an emergency arrest to physically restrain a suspect for a serious crime when a warrant from a judge cannot be obtained in advance due to the urgency of the situation, with the request for a warrant submitted to a judge immediately after the arrest; and
(iii) an on-the-spot arrest, without an arrest warrant, to physically restrain a suspect when the person is apprehended in the act of committing or having just committed an offense, and there is no doubt about his/her identity.
・Detention: Detention of a suspect is a measure applied following an arrest and is restricted to arrested suspects only. Only a public prosecutor can request a detention. Detention of a suspect is permitted when there is probable cause to suspect he/she committed a crime, and if any of the following apply (Code of Criminal Procedure, Article 207, paragraph (1) and Article 60, paragraph (1)):
(i) the suspect has no fixed residence;
(ii) there is probable cause to suspect that the suspect may conceal or destroy evidence; or
(iii) the suspect fled or there is probable cause to suspect that he/she may flee.
The judge receives the request and reviews the documents and other supporting evidence, and if he/she determines that the requirements for detention have been fulfilled after notifying the suspect of his/her right to remain silent and right to appoint defense counsel and after directly listening to any explanation from the suspect, the judge may then issue a detention warrant.
The detention period prior to the institution of prosecution is limited to 10 days from the day on which the detention is requested (Code of Criminal Procedure, Article 208, paragraph (1)). However, a judge is permitted to extend this period by up to a further 10 days upon request from the public prosecutor if unavoidable circumstances exist, such as when further investigation is necessary (Code of Criminal Procedure, Article 208, paragraph (2)).
・Legal deadline for completing police investigation phase: There is no legal deadline regarding a suspect who is neither arrested nor detained.
Regarding a suspect who is arrested or detained, the period of physical restraint is strictly stipulated under the law. When a suspect is arrested by a police officer, the police officer must refer the suspect to a public prosecutor together with the documents and articles of evidence within 48 hours of his/her arrest (Code of Criminal Procedure, Article 203, paragraph (1)). The public prosecutor who receives such a referral must determine whether to release the suspect or request a judge to detain the suspect for further physical restraint within 24 hours of receiving the suspect, with the period of physical restraint not exceeding 72 hours (Code of Criminal Procedure, Article 205, paragraph (1), (2) and (4)).
Chart 2. Organizational chart: main steps of criminal investigation process
3.1.2. Main steps in criminal prosecution proceedings
・Authority responsible for criminal prosecution: In Japan, there is no allowance for criminal prosecutions to be instituted by victims or any person other than the public prosecutor. Public prosecutors have wide-ranging prosecutorial discretion in Japan, and there are two justice systems in place to remedy any abuse or illegal exercising of that discretion by public prosecutors.
The first, adopted in 2009, is an examination by the Committee for Inquest of Prosecution (検察審査会) comprised of 11 members selected by lottery from among Japanese nationals. The committee investigates whether or not a public prosecutor’s decision not to institute prosecution was appropriate, based on claims by the victim or a party concerned in criminal cases, or under its own authority. The purpose of this system is to reflect public opinion, and suspects could be prosecuted under certain conditions.
Another system is a quasi-prosecution procedure（準起訴手続） (Code of Criminal Procedure, Article 262 et seq.). Plaintiffs and accusers may demand that a trial be held in court if they are dissatisfied with a public prosecutor’s decision not to institute prosecution where the crime involves a government employee. If it is judged that the demand has sufficient grounds, a public attorney appointed by the court exercises the same function as a public prosecutor.
・Arrest/detention of suspect during criminal prosecution: During criminal prosecution, the suspect can be detained for two months and the period can be renewed continuously every one month until the end of prosecution proceedings if there is probable cause to suspect that the suspect may conceal or destroy evidence and/or there is probable cause to suspect that he/she may flee.
However, during the criminal prosecution phase, the suspect can apply for bail on the condition of payment of bail money. Under current legislation, bail is not available to suspects before they are prosecuted. Article 89 of the Code of Criminal Procedure stipulates that when bail is requested, it must be granted except in certain cases, such as when the accused committed a serious crime and there is probable cause to suspect that the accused may conceal or destroy evidence.
・Criminal judgments in absentia: There are no criminal judgments in absentia unless the suspects waive their respective rights to be present.
・Legal deadline for completing criminal prosecution proceedings: A legal deadline for completing criminal prosecution proceedings is not stipulated in the Code of Criminal Procedure, and there is a possibility that the period of physical restraint can be too long and restrict freedoms of a suspect, while the criminal proceeding is continuing.
Chart 3. Organizational chart: main steps in criminal prosecution proceedings
3.1.3. Extent to which criminal legal system is a rule of law compliant system that respects due process
・Interrogation without presence of an attorney: An interrogation is carried out in a closed room called an “interrogation room” in the police station or in the public prosecutor’s office. The suspect may be subjected to many interrogations for a long time without the presence of an attorney. By an amendment of the Code of Criminal Procedure in 2016, a system of audio/video recordings of the process of interrogations was introduced commencing no later than June 2019. However, the cases subject to this system are limited to cases to be tried by the “SAIBAN-IN (lay judge system)” and those in which public prosecutors conduct their own investigations. As a result, this system is not applicable to most cases.
・So-called “Hostage Justice”: When compared to the other countries, the period of detention before indictment in Japan is relatively long, which can extend for up to 23 days after arrest. In theory, any un-sentenced person must be detained at a penal institution (detention center) under the jurisdiction of the Ministry of Justice, but in reality many are detained in detention facilities (detention rooms in police stations, daiyo-kangoku) operated by the investigating authority. Such persons are kept in the custody of the police night and day for interrogation. Bail is not easily granted unless one admits to the charges. As the detention period becomes longer, the detainee, who has not been sentenced, is increasingly isolated from his or her daily work and home and suffers incalculable disadvantage. It is not uncommon that suspects admit charges for which they are not responsible, only in order to escape from the long detention. As a result, such suspects, after being convicted, must go through great difficulties for a long period of time to clear false charges against them.
・Recent resolution of Japan Federation of Bar Associations: The Japan Federation of Bar Associations made a resolution in October 2019 that (i) interrogations without the presence of an attorney, when such presence is requested by the suspect or attorney, should be banned, and (ii) legislation effecting such ban should be made and implemented.
3.2. Civil Procedure
3.2.1. Description of main civil procedure and family, labor procedure
Chart 4. Jurisdiction and Procedure of Civil Cases
The judge generally has a wide discretion and an active position in order to ensure proper and prompt progress of the litigation.
The judge is generally unable to pursue evidence himself/herself with some exceptions. The judge may commission a government agency or public office, a foreign government agency or public office, or school, chamber of commerce, exchange or any other organization to conduct a necessary examination. The judge may commission a government agency or public office, a foreign government agency or public office, or a juridical person that has adequate equipment to give expert testimony when he or she deems necessary.
With regard to allegations or evidence that a party has advanced outside the appropriate time intentionally or by gross negligence, the court, when it finds that such allegations or evidence will delay the conclusion of the suit, may order dismissal of the suit upon petition or by its own authority.
In order to clarify the matters related to the suit, the judge may ask questions of a party or encourage him or her to show proof with regard to factual or legal matters. There are different views regarding whether a judge may assist an unrepresented party to be reversal of victory or defeat.
The court may prohibit a party in court, who is unable to make statements necessary to clarify the matters related to the suit, from making statements, and specify another date for continuance of oral argument.
Civil provisional remedies (minji hozen) are proceedings to temporarily prohibit the disposal of assets, and determine the tentative position of the parties with regard to the rights under dispute in a civil suit in order to preserve the fulfillment of a right.
Chart 5. Civil Case Proceedings
Chart 6. Flow of Domestic Relations Adjudication Cases
The Labor Tribunal Act（労働審判法） was enacted as part of judicial reform, and took effect on April 1, 2006. With labor-related disputes increasing along with changes in socioeconomic conditions, the purpose of labor tribunal proceedings is to resolve a dispute about whether or not a labor contract exists quickly, appropriately, and effectively between an individual employee and their employer. The proceedings are handled by a labor tribunal comprising a judge and two labor tribunal members.A family court hears cases that differ in nature from ordinary civil and criminal cases, through inquisitorial procedures that suit the particularities of those cases. Since cases of domestic disputes often involve emotional conflicts between the parties, in order to thoroughly resolve such cases, the court must not only render a legal determination, but must also sufficiently deal with such emotional conflicts. Therefore, domestic dispute cases are dealt with non-publicly, except for litigation relating to personal status. The court must attempt to resolve domestic disputes through conciliation first, before going forward with legal proceedings such as litigations or adjudication.
3.2.2. The procedures or techniques which are employed to encourage the parties to reach a conciliation or settlement of a dispute during formal civil legal proceedings
The judge, irrespective of the extent to which a suit has progressed, may attempt to arrange a settlement or have an authorized judge or commissioned judge attempt to arrange a settlement. However, there is no compulsory “settlement”.
3.2.3. A rule of law compliant system that respects due process
Appeal and Retrial is a rule of law complaint system.
The weakness of enforcement of judgments is often criticized for not providing effective remedies. The weakness of enforcement of judgments is frequently pointed out in the field of court-ordered support to be paid by one spouse to the other who has custody of the children after the parents are separated, causing the lone-parent to live a harsh life.
3.3. Alternative Dispute Resolution
3.3.1. The compulsory diversion of disputes
The jurisdiction is based on the option of an applicant. Such forums are divided into government-sponsored and not government-sponsored.
Alternative Dispute Resolution (ADR) is generally not commonly used except for traffic accidents, financial instruments and exchange monetary disputes, and nuclear power station accidents. One of the reasons that ADR is not commonly used is that attorneys are familiar with the court proceedings and not necessarily willing to use the ADR.
3.3.2. The voluntary or consensual diversion of disputes
Traffic accidents, financial instruments and exchange monetary disputes, and nuclear power station accidents are commonly referred to ADR. The jurisdiction is based on the agreement of the applicants.
3.3.3. Examine the policy drivers behind the development of ADR processes
The Act on Promotion of Use of Alternative Dispute Resolution was enacted in 2007 to promote the use of ADR. It introduced a certification by the Ministry of Justice to guarantee the quality of the institutions.
In order to save costs and judicial time in the administration of civil justice, the hearing procedure is not open to the public, thereby providing less stressful and more harmonious forms of dispute resolution for the parties and setting up forums that provide remedies that better meet parties’ underlying needs compared with litigation
It is sometimes criticized that despite parties have no obligation to consent, the party who cannot afford a lawyer is sometimes forced to compromise and consent.
3.4. Simplification of law and by-passing legal processes
3.4.1. Reduce the cost and time required of judges, parties and/or others
A. “No-fault” liability rules for defective products
The Product Liability Act enforced in 1995 was enacted as a special provision of the principle of negligence liability stipulated by the tort law.
The Product Liability Act is based on “no-fault” liability to prevent and remedy consumer damage due to the accidents caused by products.
Prior to the enactment of the Product Liability Act, general tort law was used to help victims in the event of an accident caused by defective products. However, it was extremely difficult for victims to claim and prove the manufacturer’s negligence. The Product Liability Act revised the principle of negligence in tort law from the viewpoint of consumer protection and introduced product liability based on the concept of defect liability.
B. “No-fault” divorce
Traditionally, divorce in family law was based on “fault” in which a request for divorce from a spouse, who is liable for the cause of divorce, was not accepted. However, if it is recognized that the marital relationship has been substantially broken for a considerable period of time, the divorce requested from liable spouse will be accepted under certain conditions (1987 supreme court decision). Since this supreme court decision, there has been a transition from “fault” divorce to “less fault” or “no-fault” divorce.
3.4.2. Decision upon an appraisal of the equities of the individual disputes with regard to small, modest or otherwise socially significant claims
Modified rules or equity with regard to small, modest or otherwise socially significant claims does not exist in Japan. One of the reasons why modified rules or equity does not exist is that Japan is in the tradition of civil law and does not have the tradition of “equity” observed in common law countries.
3.4.3. Alter the basis of remedying the alleged injury (“no-fault” automobile accident compensation law)
The automobile damage compensation law and the compulsory insurance system was established in Japan in 1955. The law stipulates that the victims are not required to prove the driver’s negligence, but the drivers are liable for damages unless the following three matters can be proved.
First, drivers did not neglect the driving duty.
Second, a third party other than the victim or driver had negligence.
Third, there were no structural defects or functional failures in the automobile.
As a result of “no-fault” liability, the conventional negligence principle has become the same as that of western countries and the law has become advantageous to the victims.
In addition to “no-fault” liability, a classification of negligence rate and standardization of the amount of compensation for damages are in place in traffic accident disputes in order to resolve them efficiently and fairly.
4. ACCESS TO JUSTICE, EQUAL ACCESS TO COURT AND FAIR TRIAL
4.1. Equal access to court and fair trial by virtue of national law
The Constitution of Japan stipulates as follows:
・Right to access trial: No person shall be denied the right of access to the courts (The Constitution of Japan, Article 32).
・Criminal defendant’s rights: At all times the criminal defendant (the accused) shall have the assistance of competent counsel who shall, if the accused is unable to secure the same by his/her own efforts, be assigned to his/her use by the State (The Constitution of Japan, Article 37, paragraph (3)). However, the Constitution of Japan does not guarantee a constitutional right of civil legal aid and criminal legal aid of suspects. Therefore, indigent plaintiffs/defendants of civil cases and criminal suspects did not have the right to the assistance of a lawyer until the judicial reform described below was realized.
4.2. Political commitment to access to justice
As described in 4.4 below, the government established a Justice System Reform Council in 1999 to study basic policies and programs to achieve a judicial system that is more accessible to the general public including access to justice and legal aid, encourage greater participation of the general public in the judicial system and improve the skills and abilities of the legal profession.
It seems these judicial reform movement continued until mid-2010s but after that the momentum of the movement gradually decreased.
4.3. Government body which has responsibility for access to justice policy
The Ministry of Justice has responsibility for access to justice policy but the Supreme Court also participates in the policy because access to justice is related to fundamental rights and the basis of the judicial system such as services relating to court-appointed defense counsel and civil legal aid against the government.
4.4. Access to Justice Policy
4.4.1. Background on the Recent Judicial Movement
Most countries in East Asia experienced governance by authoritarian regimes either through colonialism before World War II or under the Cold War paradigm and conflict with communism after the war.
Although Japan was democratised under the new Constitution shortly after the end of World War II, there has been criticism that rights that should fundamentally be ensured through the legal system were often disregarded by the powerful administrative predominance and bureaucratic judicial system of the post-war period.
However, along with the persistent support of civil movements after the end of World War II, from the 1990s (1980s and on worldwide), powerful administrative regulation started to be eliminated to enable the privatisation of state and society, and the demand from Neo Liberalism intensified for establishing the rule of law to manage the de-regulated society to replace the powerful administrative pre-regulated society.
Thus Japanese judiciary reform was promoted under such circumstances along with political reform, administrative reform, and economic structural reform, including deregulation.
For over the past decade, the Japanese judicial system has been in the midst of major reforms. In 1999, the government established a Justice System Reform Council（司法制度改革審議会） to study basic policies and programs to achieve a judicial system that is more accessible to the general public, encourage greater participation of the general public in the judicial system and improve the skills and abilities of the legal profession. Since its inception, it had met 63 times and in 2001 issued an opinion paper calling for fundamental reforms. These reforms represent the transition from “small-scale justice” to “large-scale justice.” They seek to extend the rule of law to all facets of society and, within the context of deregulation, to orient Japan away from “prior regulation” to “after-the-fact relief,” as well as expanding the number of people involved in the judiciary as it takes on a greater role as the institution for providing “after-the-fact relief.” The recommendations in the Council’s opinion paper, together with subsequent discussions in the Office for Promotion of Justice System Reform resulted in the passage of 24 laws related to justice system reform by the end of 2004.
One specific issue for judicial reform is achieving a substantial increase in the number of people involved in the legal profession. In 2005, Japan had approximately 25,000 legal professionals, which nearly doubled by 2018. This represents a significant acceleration; in the past it took approximately 33 years for the number of legal professionals to double.
In 2004, Japan opened its first graduate-level law schools to provide training for these new lawyers. Since 2004, legal training and education at law schools has been implemented. This reform aims to shift the focus of legal training from selection through the single event of the bar examination to training through the broader process of professional legal education at law schools.
To provide for greater public involvement, the “SAIBAN-IN (lay judge system)” started in 2009 and will allow ordinary citizens to participate in certain serious criminal trials alongside professional judges.
In the fall of 2006, government-funded legal aid organization “Japan Legal Support Center”（日本司法支援センター） started to operate based on the Comprehensive Legal Support Act enacted in 2004. The Center is organized as a “quasi-independent administrative institution,” and has opened offices in each of the areas where the district courts are located throughout Japan, as well as in areas suffering from a shortage of attorneys. It provides an access point for the resolution of legal issues and legal services on both the civil and criminal sides.
Many other reforms are also moving ahead. These reforms include various systemic reforms regarding the criminal justice system such as provision of court-appointed attorneys to detained suspects; reforms of the administrative litigation system such as expansion of the range of parties qualified to file suits; reforms of the intellectual property system such as establishment of the Intellectual Property High Court; reforms of the system concerning judges such as appointment and evaluation of judges; establishment of a system where judges and prosecutors experience other professions; liberalization of profit-earning activities of attorneys; deregulation of legal fees; improvement of the disciplinary system; and establishment of the labor adjudication system.
4.4.2. Legal Aid Policy
Japan has a population of approximately 126,140,000 (as of October 2019) and 41,118 attorneys (as of March 2019), which is about 1/32 of the number of attorneys in United States, for example. Despite the adoption of judicial supremacy after World War II through transplanting the constitutional review system in the style of United States (Article 81 of the Constitution), the actual post-war history proves that it was more of an administrative supremacy society with the administration supporting the political, social and economic aspects of post-war Japan hand-in-hand with legislature and industries, through the “convoy style” regulation. On the other hand, the role of the judiciary was small, and as there was basically no public funding except for limited criminal legal aid. Legal aid was operated in a small scale with funds allocated from membership fees paid by the bar associations.
However, economic globalization gradually intensified market competition, adding pressure towards deregulation and increasing the criticism against the “convoy style” system explained above. Abolishment of various administrative rules which protected employers and regions, and reduction of fiscal expenditures on public projects were also promoted.
One of the purposes for the establishment of the Japan Legal Support Centre is to provide a safety net in response to such deregulations; however, its budget remains small in comparison with Western countries, and it does not provide a “sufficient” safety net. Poverty and disparity is certainly expanding in Japan, and there is an urgent need to take measures.
4.5. Problems in ensuring equal access to justice for minorities, immigrants, indigenous peoples or other groups
Civil legal aid also is provided for immigrants lawfully residing in Japan. Regarding immigrants who do not lawfully reside in Japan, the Japan Federation of Bar Associations provide services including legal support related to refugee adjudication in the interest of protection of human rights.
But the number of refugee status immigrants admitted by the Japanese government is very small compared with Western countries and has been criticized internationally.
Regarding the refugee’s right for the access to courts in recent court case, the district court in Nagoya city did not guarantee the right for a refugee who was disqualified from refugee status by the government and was deported without being given the opportunity to file a lawsuit for reviewing the disqualification (July 2019). The plaintiff appealed to the High Court immediately.
5. LEGAL AID SYSTEM
5.1. History of legal aid
5.1.1. When was the right to legal aid first recognized by laws?
Under the criminal procedure code enacted in 1880, court appointed counsel for those charged with a felonious crime（right to criminal legal aid）was first recognized by law. As for the right to civil legal aid, it was not yet provided as individual rights until the enactment of Comprehensive Legal Support Act in 2004.
Article 8 of the Comprehensive Legal Support Act provides that the national government is responsible for establishing and implementing comprehensive measures for the implementation of comprehensive legal support including civil legal aid and the establishment of Japan Legal Support Center (JLSC).
Article 14 of the Comprehensive Legal Support Act provides that the purpose of the JLSC is to render prompt and proper support related to comprehensive legal support, and civil legal aid is included in JLSC’s activities.
5.1.2. Evolution of legal aid
A. Criminal legal aid
Although court appointed counsel for criminal defendants charged with felonious crime was provided under the criminal procedure code enacted in 1890, there was no state-funded court appointed counsel system for detained suspects until 2006
Articles 34 and 37 of the Constitution of Japan, established in 1946, stipulate the rights of suspects and accused, but the right for state-funded defense counsel continued to be limited only for defendants in court procedure. At the investigation stage, obtaining confessions from suspects was the most important task for police officers and prosecutors, and suspects were subject to long detention due to multiple suspicions, severe restriction of the interview with the counsel, or unlawful investigation such as torture, compulsion or threat by the police officers, and these unlawful investigations resulted in many false convictions.
In 1980s, several final decisions sentencing the defendants to the death penalty were overturned in the retrial proceedings and the innocence of the defendants were declared by the Supreme Court. As a result of these decisions, the necessity of state-funded counsel for suspects at the investigation stage was gradually recognized. When the duty solicitor scheme（24-hour scheme in the police station）in England and Wales was introduced in 1986, some local bar associations in Japan started to make similar schemes in their areas. It was a scheme in which a duty attorney dispatched from a bar association makes the first interview free of charge in a police station in response to request by the detained suspect. In 1991, Japan Federation of Bar Associations（日本弁護士連合会：JFBA ）made a plan to spread the scheme all over the country, and it was accomplished two years later. Japan Legal Aid Association（財団法人法律扶助協会：JLAA）sponsored by JFBA started to pay attorneys’ fees for suspects who need continuous advice by attorneys before indictment（Legal Assistance for Suspects ). JFBA requested the Ministry of Justice to create a state-funded scheme for the advice of counsel before indictment, and in October 2006, the Code of Criminal Procedure was reformed and court-appointed counsel were assigned to suspects in certain categories of criminal cases. In 2009, the scope of the categories was expanded, and in 2016, it was further expanded to cover all detained suspects.
As there had been no state-funded scheme for juvenile cases, JLAA had been providing attendance help by counsel for juvenile cases. In 2007, the Juvenile Act was amended and attendance help of counsel began for felony cases by JLSC.
B. Civil legal aid
After the World War II, following the advice by the General Headquarters of Occupation Forces, JFBA started preparation for a civil legal aid scheme and established JLAA as its affiliated association in 1952. The headquarter office was set in the JFBA, and branch offices were set in each local bar association. JLAA started civil legal aid by making advance payment of attorney’s fee and court costs. The Ministry of Justice began subsidizing for JLAA in 1958. However, the scope of subsidy was limited to payment of the fees of the attorneys, not including operational costs of JLAA, and the amount of subsidy was not adequate enough even for payment of the fees. Because the state subsidy was not increased for a long period of time, a significant portion of the administrative costs depended on subsidies from bar associations and donations of lawyers. Consequently, aided cases reached only over hundreds even in large city areas such as Tokyo and Osaka and aided cases were limited under ten per year in many local branch offices at the end of 1970s.
Stimulated by the substantial enrichment and expansion of civil legal aid in Europe and the United States. in 1960s and 70s, JFBA and JLAA began investigation to build up a civil legal aid founded by an act since 1980s and guaranteed adequate funds and requested the Ministry of Justice to establish a fundamental law for facilitating civil legal aid . In 1994, the Ministry of Justice established Legal Aid Research Council consisting of officers of the Ministry of Justice, members of JFBA and JLAA, and scholars with expert knowledge. In 2000, following the recommendations of the Council, the government proposed the Civil Legal Aid Act to the Diet, and it was passed unanimously. The Act first admitted an obligation of the government for facilitating civil legal aid, and JLAA was designated to be the organization for administrating civil legal aid. JLAA obtained a stable financial condition and aided cases rapidly grew. However, the Act did not formally subsidize the operational costs.
In 2004, as a part of judicial reform, the Comprehensive Legal Support Act was enacted. JLSC was established by the Act and took over civil legal aid from JLAA, together with criminal legal aid（administration on the court-appointed counsel）from the Court. The number of civil legal aid cases in 2018 was (i) legal consultations: 314,614, (ii) representation aid: 115,830, and (iii) documentation aid: 3,522. The number of consultation cases in 2018 was 3.1 times as many as that of 2005, and representation cases were 1.9 times as many as that of 2005.
Chart 7. Changes in the number of Civil Legal Aid
In March 2011, the East Japan Great Earthquake occurred. For assisting the victims of the earthquake, JLSC started support activities in the damaged areas by setting emergent area offices. Under the Special Act for Victims of the Earthquake enacted in 2012, JLSC has been providing special legal aid to reduce the burdens of the victims. In 2012, JLSC conducted a legal needs survey in the disaster areas. Following these efforts, the Comprehensive Legal Support Act was revised in 2016 to provide disaster victims with free legal consultation without a means test. The revised act also provides free legal consultation for aged and disabled persons with cognitive impairment, and victims of strokes and victims of domestic violence without a means test.
5.1.3. Significant reform/restructuring of the national legal aid system
As described in section 4 above, legal aid in Japan was dramatically changed in the judicial reform accomplished following the recommendations by the Judicial Reform Council published in 2001, and the Comprehensive Legal Support Act (the “Act”) enacted in 2004 followed thereafter.
JLSC, established by the Act, had taken over civil legal aid from JLAA, and criminal legal aid（administration relevant court appointed defense counsel）from the court.
Beside these activities, JLSC started several new activities: including legal information services, legal services in the remote areas with limited legal services, and support for crime victims.
In criminal procedures, the right to court appointed counsel was expanded for suspects of certain cases, and criminal legal aid expanded to become a comprehensive system, covering both detained suspects and defendants after indictment.
5.1.4. Historical correction between democratic development process and the emergence/strengthening of the legal aid system
After the World War Ⅱ, a new constitution was enacted in 1946, proclaiming the sovereignty of the people, and Japan became a democratic country. The Constitution provided right of the accused to be assisted by court-appointed counsel. Civil legal aid was also conceived during the democratization process, which led to the establishment of the JLAA in 1952.
The strengthening of the legal aid system from the establishment of the JLAA to the JLSC was described in section 4 above.
5.1.5. Importance of legal aid in delivering the access to justice, equal access to the court and fair trial rights and goals described in section 4.
Legal aid is seen as one of the principal measures for promoting access to justice.
The reason the legal aid is seen as “one of the principal measures” is described in Section 5.11.
An important role that legal aid plays in the overall picture is to support the indigent and vulnerable (especially the vulnerable elderly who have cognitive impairment) because Japanese society is currently facing a transition to the super-aging society, and there is an urgent need to eliminate fraud damage of elderly people and facilitate legal protection of the elderly, providing necessary care and life security. Also, the number of foreign workers is increasing rapidly, and civil legal aid will become increasingly important for the legal protection of these workers and their families.
5.2. Legislative Framework for Legal Aid
The Japan Legal Support Center (JLSC) was established on April 10, 2006, under the Comprehensive Legal Support Act .
The Act aims at creating a society that provides the necessary information and services to resolve disputes, either civil or criminal, by giving access to the law anywhere in the country. It also prescribes the implementation of comprehensive legal support and the establishment of a comprehensive legal support framework. The JLSC is the core body that implements comprehensive legal support, and it is a publicly owned corporation that is fully funded by the government (Articles 1 and 2 of the Act).
5.3. Institutional Framework for Legal Aid
The JLSC is a publicly owned corporation that has been established with funding from the national government. This requires that the administration and activities of the JLSC are fair, neutral, independent and highly transparent. Its organizational framework follows that of an incorporated administrative agency（独立行政法人）. An incorporated administrative agency is a legal entity established in accordance with legislation for the efficient and effective implementation of public services and to fulfill duties that are essential for people’s lives. Such services are not necessarily directly implemented by the government; however, they equally cannot be delivered solely by the private sector.
Although the JLSC is under the jurisdiction of the Ministry of Justice, the Supreme Court also participates in the establishment and administration of the JLSC because it provides services and activities related to the fundamental basis of the judicial system, such as services related to court-appointed defense counsel and civil legal aid. In this respect, the JLSC differs from an incorporated administrative agency.
The administrative framework of the JLSC is also stipulated by the Act. It authorizes the Minister of Justice to establish medium-term objectives, which are the service administration objectives the JLSC should achieve within the next 4 years. Based on these medium-term objectives, the JLSC must draw up a medium-term plan and annual plans to achieve its service administration objectives. The JLSC proceeds with its operations and provision of services independently in order to meet the goals of the annual plan, with improving service quality and efficiency being the focus. Each year, operational performance is evaluated by a third party evaluation committee, which has been established within the Ministry of Justice.
The president of the JLSC is the executive head of the organization and presides over, and is responsible for, the JLSC’s operational administration. After hearing the opinion of the Supreme Court, the Minister of Justice names the president. The president is assisted by four executive directors belonging to different professions and not just legal professionals.
5.3.3. Offices of the JLSC
The JLSC is headquartered in Tokyo and has 108 local offices throughout the country (as of April 2019). There are four types of local offices: (i) district office; (ii) district branch office; (iii) sub-branch office; and (iv) local law office. Each type of office has its own range of services.
A. District Offices
District offices have been established at 50 locations at each of the main benches of the district courts. Each district office provides all JLSC services.
B. District Branch Offices
District branch offices have been established at 11 locations in cities with high populations or with a significant number of matters coming before the court and where the relevant district office cannot sufficiently cover the area independently. These offices provide the JLSC’s five principal services.
C. District Sub-Branch Offices
There are two sub-branch offices in Tokyo and one in Osaka (as of April 2019). Sub-branch offices provide information services and civil legal aid.
By March 2013, the JLSC had established seven sub-branch offices in the Iwate, Miyagi, and Fukushima Prefectures, the main affected areas of the Great East Japan Earthquake. For further details regarding the services of sub-branch offices, please refer to Section 5.1.
D. Local Law Offices
Local law offices have been established in regions where residents cannot easily access legal services because of the limited number of attorneys in the area. As of April 2019, there are 37 local law offices where JLSC’s staff attorneys are stationed on a full-time basis.
Local law offices are categorized into two types. Some local law offices are situated in areas with poor legal access because they suffer from a shortage of attorneys, and others are located in areas that do not suffer from a shortage of attorneys but only have a small number that deal with civil legal aid matters or that act as a court-appointed defense counsel. The former provides general legal services, which are similar to those provided by any ordinary law office. The latter provides services only for certain matters, such as civil matters with the support of civil legal aid or criminal matters necessitating a court-appointed defense counsel.
5.4. Legal Aid Budget
5.4.1. Sources of funding
The funding of JLSC is divided into two categories: services relating to court-appointed defense counsel and other services.
The total budget of JLSC for FY2018 was approximately 47,260 million yen (approx. 430 million USD).
The breakdown was as follows:
16,613 million yen (approx. 151 million USD) (35.2%) was for services relating to court-appointed defense counsel and this is fully funded by the government. There is no cap on court-appointed defense counsel expenditure.
For other services (civil legal aid, information services, crime victim support and services in areas with insufficient legal services), 15,391 million yen (approx. 140 million USD) (32.6%) was from the government, 12,206 million yen (approx. 110 million USD) (25.9%) was repaid by the civil legal aid recipients and 1,667 million yen (approx. 15 million USD) (3.5%) was from other business income. These services have caps on annual spending.
5.4.2. Funding cuts and strategies
The JLSC has never experienced large-scale funding cuts, because its scope of services has been expanded. But the JLSC is required to try to improve its efficiency because its organizational framework follows that of an incorporated administrative agency. The JLSC Medium-term Plan (2018-2021) stated that it reduces its general administrative costs by 3% and project costs by 1% every year.
Chart 8. Summary of the JLSC’s budgets and balance of accounts for recent years
|Changes in Government Funding of the JLSC||(million of JP Yen, figure in parentheses is million USD, 1USD = 110Yen)|
|Government Grants for Operational Expenses (Civil legal aid and information services)||15,206||15,117||15,396||15,391||15,508|
|Funds for Services Related to Court-Appointed Attorneys and Attendants||16,110||16,067||15,478||16,851||16,613|
|Growth from the previous year (%)||1.94||0.42||0.99||4.43||0.38|
|Changes of Balance in Accounts of the JLSC||(million of JP Yen, figure in parentheses is million USD, 1USD = 110Yen)|
|Government Grants for Operational Expenses (Civil legal aid and information services)||15,507||15,206||15,117||15,396||15,391|
|Project Income (e.g. Reimbursement of Civil Legal Aid)||10,737||10,958||11,469||11,859||12,206|
|Income from Entrusted Services (total of state and JFBA funding)||18,079||17,230||17,411||17,014||17,950|
|Project Expenses (e.g., Civil Legal Aid)||17,815||18,337||–||–||–|
|Expenses for Services Related to Court-Appointed Attorneys and Attendants||16,066||15,458||–||–||–|
|Expenses for Entrusted Services (aid services entrusted by the JFBA and others)||2,012||1,772||–||–||–|
|Others Expenses such as Personnel Costs (excluding those Entrusted Services)||8,046||7,911||–||–||–|
|Project Expenses (2)||–||–||32,319||32,928||33,705|
|General Administrative Expenses (2)||–||–||3,503||3,717||4,061|
|Expenses for Personnel Costs (2)||–||–||7,911||7,737||7,875|
|(1) The total figure may not be equal to the sum amount of each item because of rounding off.|
|(2) Following the revision of the Accounting Standard of Incorporated Administrative Agency, the classification of the expenses has been revised since 2016.|
5.5. Legal Aid Providers
Private attorneys, salaried staff attorneys and judicial scriveners provide legal aid services. In order to handle legal aid cases, attorneys and judicial scriveners have to enter into a contract with the JLSC.
Representation services are mainly provided by attorneys and document preparation services are mainly provided by judicial scriveners. Usually, an attorney who provides initial advice will be the provider of representation. Because of the history of civil legal aid in Japan and the limited number of staff attorneys, the level of representation provided by staff attorneys is not high (estimated to be around 4 percent of total cases).
One quarter of salaried staff attorneys are stationed on a regular basis in rural areas where residents cannot easily access legal services, for example, due to the limited number of attorneys in the area.
5.6. Quality Assurance
Currently the JLSC does not have an audit or peer review system, but has a contract and training system.
5.6.1. Lists of legal aid lawyers by bar associations
Practicing lawyers must be a member of both the local bar association and the JFBA. Every local bar association has committees for criminal defense, rights of children and crime victims.
The criminal defense committee of the bar association is responsible for the operation of the duty attorney system, the court-appointed attorney system, training and activity relating to the reform of criminal procedures.
Before entering into a legal aid contract (criminal, juvenile or crime victim support) with the JLSC, attorneys must be enrolled in a list maintained by the local bar association. Currently, the bar association is responsible for maintaining the respective lists.
In order to handle legal aid services (either consultations or civil or criminal cases), attorneys have to enter into a contract with the JLSC. The JLSC has established the Rules for the Handling of Legal Affairs (RHLA) to be followed by contract attorneys.
The RHLA sets out the criteria for the handling of legal affairs by contract attorneys. If contract attorneys breach their duties, the contract may be cancelled or suspended for a certain period after the decision of the Judging Committee of the JLSC.
5.6.3. Training and education
Training and education of legal aid lawyers plays an important role in maintaining and improving quality of service. All the district offices of the JLSC hold training seminars or workshops for both civil and criminal legal aid lawyers at least once a year. For court-appointed attorneys in criminal cases, many of the training seminars are held jointly with the criminal defense committee of the bar association.
The JFBA is enhancing its training programs for attorneys in order to maintain quality legal services and to adequately respond to the need for legal services. Specific training programs include ethics, training for newly-registered attorneys and training to improve practical skills. These training programs include lectures on legal aid procedure and criminal practical skills for court appointed defense counsel.
For staff attorneys, the JLSC established the Support Office for Staff Attorneys and the “Research Office for the Skill of Defense in Lay Judge Trial”. Senior attorneys who have experience and expertise in civil and criminal legal aid are stationed in both offices and contacted by staff attorneys from all over the country. The offices also hold the fulfilling training seminars periodically for staff attorneys.
Through these processes, the quality of services provided by staff attorneys is improving. JLSC staff attorneys are also expected to help to improve the skills of lawyers in private practice, especially in lay judge trial.
5.7. Criminal Legal Aid
5.7.1. Scope of criminal legal aid
A. Is legal aid available for suspects arrested or detained on criminal charges, during the criminal investigation phase?
Article 37 of the Constitution of Japan states, “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” (Article 37, paragraph 3 of the Constitution of Japan).
The court-appointed defense counsel system is based on this provision of the Constitution. Under the current system, if a person is detained in connection with a criminal case (a “detained suspect,” including a minor) or is being prosecuted (a “defendant,” including those who are not detained) and he or she cannot retain a defense counsel because of financial difficulties, a defense counsel will be appointed at such a person’s request or on the court’s authority.
However, an arrested suspect (before a warrant for detention is issued by the court, i.e., during the 72 hours arrest period) is not entitled to a court-appointed defense counsel.
All arrested suspects in Japan can receive one free visit from a duty lawyer (Toban Bengoshi). Duty lawyers will explain Japanese law and procedures. They can also contact the suspect’s family. The duty lawyer system is funded and administered by the Japan Federation of Bar Associations.
Detained suspects are entitled to ask for a court-appointed counsel if they are unable to appoint one because of financial difficulties or other reasons.
The family court handles juvenile cases at the indictment stage, and, if the court determines that the case meets the criteria for certain serious cases, a court-appointed attendant will be appointed for the juvenile. The JLSC provides services with respect to such official attendants in a manner similar to that of a court-appointed defense counsel.
Chart 9. Number of court-appointed defense counsel for Suspects
B. Is legal aid available for suspects charged with a crime (but not arrested or detained), during the criminal investigation phase?
No. Legal aid is not available for suspects who are not arrested or detained.
C. Is legal aid available for defendants during trial and other hearings?
Yes. Legal aid is available for defendants during trial.
D. Does a convicted person have the right to legal aid after the criminal conviction, to appeal against conviction?
Yes. A convicted person has the right to legal aid to appeal against conviction.
E. Does a convicted person have the right to legal aid after the criminal conviction, during the criminal enforcement phase?
No. A convicted person does not have the right to legal aid during the criminal enforcement phase.
Chart. 10. Number of court-appointed defense counsel for Defendants
F. Is legal aid available for victims of crimes?
The JLSC, depending on the needs and situations of crime victims and their families, provides the following services:
・Court-Appointed Attorney for Victims: When a crime victim, who is allowed to participate in a criminal trial by the court (a participating victim), has financial difficulties, they can request the court to appoint an attorney to support them. On behalf of the government, the JLSC is required to listen to the participating victim’s requests, nominate a candidate attorney, coordinate with the court, and manage the processing of payment to the appointed attorney.
・Reimbursement of Transportation Cost to Participating Victims: Participating victims can request the state to reimburse transportation and accommodation costs. The JLSC manages the process by calculating the cost and sending funds to the applicants.
・Legal Consultation for the Victims of Specific Crimes: The JLSC provides legal consultation for the victims of specific crimes, including domestic violence, stalking, and child abuse, regardless of their financial situation (when their financial resources exceed a certain amount, the JLSC may charge them a legal consultation fee). The legal consultation is conducted to avoid further damages. In this consultation service, the victims can confer with attorneys about criminal procedures against the offender, while the free legal consultation provided by civil legal aid is limited to civil matters.
G. Is legal aid available for witnesses?
No. Legal aid for witnesses is not available in Japan.
5.7.2. Eligibility criteria and the process for criminal legal aid
A. What are the eligibility criteria for criminal legal aid in Japan?
The hardship threshold is 500,000 yen (approx. 4,545 USD). If the total cash and savings of a suspect is less than 500,000 yen, a court requests the JLSC to nominate a candidate court-appointed defense counsel.
B. Does the recipient of criminal legal aid services have to contribute to the cost of providing those services?
No. A criminal legal aid recipient does not have to contribute to the cost of services.
C. Does a criminal legal aid recipient have to repay any amount to the legal aid provider, the legal aid agency or the prosecution at the end of the criminal process or at any other time?
Yes. The court decides whether there is an obligation to repay the court appointed attorney’s fee at the end of the criminal process. After the court decides that the criminal legal aid recipient shall make the repayment, the prosecutor office will send a notice of repayment to the criminal legal aid recipient.
Recipients can file a petition for exemption from repayment. Most of the petitions are approved by the court.
The level of recovery achieved in practice is not made public.
5.7.3. Process for obtaining criminal legal aid
Upon a court’s request, the JLSC selects candidates for defense counsel from a list of attorneys registered with the JLSC.
Of the total criminal cases in 2018, the court appointed defense counsels accounted for 78.0% of detained suspects, 84.8% of the defendants at district courts, and 93.1% of the defendants at summary courts (calculated from data published by the Supreme Court in 2018). Services related to court-appointed defense counsel are provided exclusively by the JLSC.
On the basis of consultations with the court in the same jurisdiction, the JLSC’s District Offices nominate an attorney for a detained suspect within a few hours, and at the latest within 24 hours, after a request from the court, and they nominate an attorney for a defendant within 24 hours, and at the latest within 48 hours, after a request from the court.
5.8. Civil Legal Aid
5.8.1. Scope of civil legal aid
Civil legal aid is provided to Japanese citizens and foreign nationals lawfully residing in Japan who face legal issues but do not have the financial means to seek legal assistance. Civil legal aid is available for any civil, family or administrative matter that is subject to the civil legal procedure other than criminal matters.
As prescribed in the Comprehensive Legal Support Act, the JLSC provides three types of civil legal aid; i.e., legal consultation, representation and documentation.
A.Whether the right to civil legal aid is specified or not
In contrast to criminal legal aid, an individual’s right to civil legal aid is not clearly stated in the Constitution or Comprehensive Legal Support Act.
B. Legal advice
Civil legal aid covers legal advice for all civil legal issues. Legal consultation (legal advice) is provided at either local offices of the JLSC or the offices of attorneys or judicial scriveners contracted by the JLSC at no charge. Part of the cost for the preparation of brief documents (letters etc.) in connection with a consultation may be subsidized by the JLSC. Of the 314,614 legal consultations which were provided in 2018, debt cases including voluntary bankruptcy made up 38.1%, family cases including divorce made up 30.3% and monetary case including damage claims made up 16.8%.
C. Legal assistance
Legal assistance outside court proceedings (for negotiation or mediation) is included in the representation-type legal aid (see section d below) and the documentation-type legal aid (see section b above). Assistance for mediation or arbitration, or preparation of legal documentation to be submitted to the court for self-representation, are provided if it requires continuous help from an attorney or a judicial scrivener. Civil legal aid system does not provide assistance with pro se litigation itself.
D. Legal representation
Legal aid by legal representation in court proceedings is available for any civil, family or administrative cases and at all stages of the procedure (including appeal and proceedings before high/superior courts)
E. Type of cases
Of all the civil legal aid cases in 2018, debt cases including voluntary bankruptcy made up 53.2%, family cases including divorce made up 31.0%, and monetary claims including damage claims made up 9.5%. Of 3,522 documentation-type legal aid cases in 2018, almost all cases were voluntary bankruptcy.
F. Legal aid for ADR
In principle, legal aid is for court proceedings. Therefore, ADR is not covered by legal aid, with the exception of the ADR legal assistance used by victims of the Great East Japan Earthquake, which was specifically provided in a special act.
5.8.2. Eligibility criteria for civil legal aid
A. Personal eligibility
To be eligible to receive support under JLSC’s civil legal aid program, the applicant must meet the following criteria:
(1) The financial resources of the applicant must be below a certain amount. The applicant’s spouse’s income and assets will be included in the calculation unless the case involves a dispute between the spouses.
(i) the applicant’s monthly income must be below a certain amount; and
(ii) the applicant’s total assets must be below a certain amount.
(2) Possibility of a successful outcome（except in the case of consultation-type legal aid)
(3) Consistency with the purpose of civil legal aid
Financial eligibility criteria for each of consultation, representation and documentation-type legal aid are roughly the same (eligibility for receiving civil legal aid is shown at the end of this Section 5.8.2).
It is estimated that about 20% of Japanese nationals are covered under the current civil legal aid system. Civil legal aid is provided to foreign nationals lawfully residing in Japan. As JLSC does not have any system for assisting migrants or refugees who do not have residence status in Japan, JFBA provides assistance for foreign nationals in need of immediate attorney support under the “Entrusted Services” program under JFBA (see Section 5.11).
B. Specialized legal aid service
Under the 2012 Act which provided legal basis for JLSC’s special support for disaster victims of the Great East Japan Earthquake of March 11, 2011, JLSC has been providing special legal aid to reduce the burden of the earthquake victims. In 2016, the Act was revised to allow provision of legal consultation services to future disaster victims nationwide without requiring a means test. The revised Act also stipulates legal consultation aid for the elderly, disabled persons with cognitive impairment, victims of stalkers and victims of domestic violence without requiring a means test. The Act designates those who are unable to exercise their own rights due to cognitive impairment as “a person eligible for specific assistance” and has established a new type of legal aid for them regardless of their financial conditions, following an application by a social welfare agency or local government for legal consultation or assistance with administrative complaint filing procedures.
C. Case-related eligibility
In addition to the financial eligibility, an applicant must satisfy both the “possibility of a successful outcome” criterion (except for consultation aid) and the “consistency with the purpose of civil legal aid” criterion. The possibility of a successful outcome is satisfied not only by an expectation of a favorable court decision but also by an expectation of a resolution through settlement, mediation or negotiation, or adjudication of personal bankruptcy with immunity. Consistency with the purpose of civil legal aid means that civil legal aid is not available in a case whose purpose is retaliation or promotion, or in a litigation that abuses a person’s rights.
D. Contribution of the legal aid recipient
Japan does not grant free financial support for civil matters but provides a loan service (interest-free) to legal aid recipients to cover attorney’s or legal scrivener’s fees and court costs. In principle, the recipients are required to repay such loan. This distinguishes the Japanese system from that of many other countries.
Upon acceptance of the application for legal aid, the recipient must agree to repay an amount of 5,000-10,000 yen (approx. USD 46-91) per month in installment. If the recipient is in severe financial difficulty, such as where the recipient is receiving welfare benefit, the recipient may be exempted from repayment.
In 2018, recipient of welfare benefits accounted for 27.8% of all civil legal aid recipients.
E. Duty to repay the costs
After the completion of the case and the submission of the attorney’s final report, a local office of the JLSC will decide the amount of remuneration for the attorney based on the result of the case. Usually the repayment by the legal aid recipient is made on an installment basis. As the repayment by legal aid recipients do not necessarily go smoothly, the JLSC always reminds defaulted recipients of the repayment.
Chart. 11. Conditions to apply for legal aid
|CONDITIONS TO APPLY FOR LEGAL AID|
|1. Financial Conditions to Apply for Civil Legal Aid|
|The financial resources of the applicant must be below a certain amount.|
|The applicant’s spouse’s income and assets will be added except in the case of dispute between a husband and wife.|
|1.1 The financial resources of the applicant must be below a certain amount|
|A. Legal Consultation Aid|
|The range of monthly income (1/12 of the after-tax annual income, including bonuses) is as follows:|
|Single-person household||Two-person household||Three-person household||Four-person household|
|182,000 yen or less
(202,000 yen or less)
|251,000 yen or less
(276,000 yen or less)
|272,000 yen or less
(299,000 yen or less)
|299,000 yen or less
(328,900 yen or less)
|* The figures in parentheses show the threshold to applied to those who live in major cities such as Tokyo and Osaka.
* For households with five or more family members, 30,000 yen (330,000 yen) per person will be added.
|The range of monthly income (1/12 of the after-tax annual income, including bonuses) is as follows:|
|Single-person household||Two-person household||Three-person household||Four-person household|
|41,000 yen||53,000 yen||66,000 yen||71,000 yen|
|B. Representation / Documentation Aid|
|If the applicant receives financial support from family member(s) living in the same household, the aggregate value of the earned income and such financial support must be below the above-mentioned income amount.|
|1.2. The applicant’s assets must be below a certain amount|
|A. Legal consultation aid|
|The total amount of cash and deposit savings must be under the following range:|
|Single-person household||Two-person household||Three-person household||Four-person household|
|1,800,000 yen||2,500,00 yen||2,700,000 yen|
|* Certain expenditures, such as medical expenses or educational expenses, if any, will be deducted.|
|B. Representation / Documentation Aid|
|If the applicant owns assets such as real state (except for one’s residence or assets to a dispute) or securities, the aggregate value of cash and deposit savings and the market value of others assets must be bellow the above mentioned amount.|
|2. The possibility of a successful outcome|
|The possibility of successful includes not only in the case where a favorable court decision is expected but where a resolution of the case is expected through settlement, mediation or negotiation, or ad judication of personal bankruptcy with immunity.|
|3. Consistency with the purpose of civil legal aid|
|Civil legal aid is not available in case of retaliation attempts, promotional purposes, or litigation that abuse people’s rights.|
|Example of amount of advance payments made by the JLSC|
|Representation Aid||Filing a claim for 5 million yen – 251,000 yen|
|Filing of divorce at court (without monetary claims) – 261,800 yen|
|Filing of petition for bankruptcy with 10 creditors – 152,600 yen|
|* upon completion of a case, additional remuneration for attorneys may be charged upon the bases in the case result.
* the amount and payment methods will be decided upon assessment.
* the amount can charge depending on the difficulties of the case.
|Documentation Aid||Drafting of complaint – 42,000 yen|
|Drafting of petition for bankruptcy plaint – 103,400 yen|
|(as of 2018 including tax)|
5.8.3. Process for Obtaining Civil Legal Aid
An applicant shall apply for legal aid at JLSC’s local offices or at offices of attorneys or legal scriveners contracted by the JLSC. Before providing any consultation service, the director of the local office of the JLSC, or a contracted attorney or judicial scrivener will examine the applicant’s financial condition to determine whether he/she can receive legal aid. To be eligible for legal aid, the applicant must provide evidence that he/she meets the financial eligibility requirement (by submitting a report on personal financial resources).
Each legal aid recipient is allowed up to three sessions of legal consultations at no charge on a single matter. After consultation, the attorney or legal scrivener will submit a claim of consultation fee to JLSC’s district office with a brief report. The JLSC then pays a fixed amount of consultation fee.
If further legal aid such as legal representation or preparation of documentation is necessary, the attorney or legal scrivener will usually prepare a brief summary of the case and submit an application to the local office of the JLSC on behalf of the applicant. The director of the district office of the JLSC will make decision on the application after considering the opinion of a member of the examining committee at the JLSC.
After the application is approved, the JLSC makes an advance payment for the attorney’s or judicial scrivener’s fees and court costs. The amount of advanced payment differs depending on the type of the case. For example, in a divorce case without monetary claim, attorneys would be paid 199,400-248,000 yen (approx. USD 1,813-2,255) for the retainer charge (advanced remuneration) and 35,000 yen (approx. USD 318) for litigation expenses. If the legal aid recipient is granted divorce at the end of the proceedings, the attorney would be paid a success fee of 64,800-129,600 yen (approx. USD 589-1178). (Example of the amount of advance payment made by the JLSC is shown in the chart on the previous page).
B. Who is responsible for granting civil legal aid?
The director of the district office of the JLSC makes a decision after considering the opinion of a member of the examining committee.
C. Appeal and review
An applicant who was refused civil legal aid can make a complaint to the director of each district office of the JLSC, and if the complaint is not approved, he/she can submit a re-assessment request to the president of the JLSC.
D. Mechanism for assigning the attorney
Legal consultation aid is provided at either a local office of the JLSC or offices of attorneys or legal scriveners contracted by the JLSC. So if a person wants to get legal help from a specific attorney who has a contract with the JLSC, he/she can ask that attorney for legal aid service. If an applicant simply visits a local office seeking legal help, the director of the office will nominate an attorney from the contracted attorneys list. If legal representation service is necessary but the applicant doesn’t know any attorney who can provide such service for him/her, the director will assign an attorney from the contracted attorneys list to provide legal representation service after examining the case.
E. Will legal proceedings be suspended until a legal aid provider is found?
As an individual’s right to civil legal aid is not clearly stipulated by the law and legal representation by a lawyer is not mandatory in Japan, court proceedings will not be suspended for the reason that the applicant does not have an attorney. In such case, the legal aid applicant usually requests the court to postpone the proceedings until he/she finds an attorney and the court usually would accommodate such request to some extent.
F. Total number of applications and grants
Chart. 12. Cases of Performance in recent 10 years (Civil Legal Aid)
|Legal Consultation Aid||237,306||256,719||280,389||271,554||273,594|
|Legal Consultation Aid||282,369||286,602||298,220||302,410||314,614|
Chart. 13. Civil Legal Aid recipients by gender and age in 2018
Chart. 14. Change in category of cases – Legal Representation Cases (%)
5.9. Holistic Legal Services
A. Holistic Services by Staff Attorney
One of the big changes in Japanese legal aid policy in recent decades is the introduction of staff attorneys by JLSC, who handle both civil and criminal disputes. JLSC employs around 200-250 staff attorneys, who, with their community-based approach and organic use of local networking, have improved access to justice in both urban and rural areas.
JLSC staff attorneys are staffed in both rural areas and urban areas, and according to the result of a survey conducted by JLSC, they have been employing a variety of measures to improve access to justice.
It is commonly observed that the JLSC staff attorneys conduct case meetings and other cooperative approaches when handling cases, periodic training sessions with relevant organisations, legal education activities for relevant organisations, low-profile trust building with relevant organisations through various formal and informal gathering opportunities, and comprehensive solution approaches through mutually-agreed-upon role divisions among organisations, regardless of the location. Furthermore, it is commonly recognized that the JLSC staff attorneys actively reach out to clients and relevant organisations and employ long-term monitoring (trouble prevention) in a number of cases where continued/periodic welfare administration and legal support are required.
In addition, in urban areas, the JLSC staff attorneys plan and propose to relevant organisation events in the form of legal consultation visits (outreach style) and seminars. JLSC staff attorneys in urban areas also focus on liaising with bar associations to engage judicare attorneys through bar association committees. JLSC staff attorney have also reached out to relevant organisations and clients accompanied by multiple judicare attorneys. This approach is credited to the JLSC staff attorneys’ understanding that cooperation among attorney groups and bar associations is essential to establishing legal aid collaboration in urban areas, and their awareness that there has to be a strategic design to transform this collaboration into a stable system.
The JLSC survey shows that, in both the rural and urban areas, actions based on collaborative relationship with relevant organisations are enabling holistic, comprehensive solutions with respect to the civil legal aid cases where the person in need has multiple issues (mental disabilities, cognitive impairment, old age, abuse, debt, poverty, guardianship, consumer matters, loss of job or residence, etc.).
The series of undertakings by the staff attorneys can be seen as an attempt aiming for strategic and comprehensive problem solvings to strengthen and build closer ties in the network of local safety nets. This resonates with the community-development-based legal aid practices of staff attorneys in Australia, Canada, England and the US, etc., which demonstrates that the experiences of overseas staff attorneys are in part in common with that in Japan.
B. Legal Social Work
In recent years, JLSC and bar associations have been collaborating and developing measures to assist elderly people with cognitive impairment. Senior staff attorneys of JLSC and private practitioners have been attempting to contact members of local governments in charge of social work and have started providing legal assistance to elderly persons in cooperation with local governments and welfare agencies. Such services were named “Legal Social Work”.
In light of such “Legal Social Work” and the shift toward an aging society, an amendment to the Comprehensive Legal Support Act was enacted in 2016 and Japan is in the second phase of the comprehensive legal aid. The “second” means that only those who have financial difficulties could be granted legal consultation aid before the amendment of the Comprehensive Legal Support Act (the “first” phase) but those who have special needs could be granted legal consultation aid regardless of their financial status under the new Act (the “second” phase).One main point of the amendment is that the elderly and disabled persons with cognitive impairment could be granted legal consultation aid regardless of their financial status.
As stated above, the amended Comprehensive Legal Support Act lifted the financial eligibility requirements of legal consultation on those with special needs such as the elderly and disabled persons with cognitive impairment. These amendments indicate that Japanese legal aid law has shifted from traditional poverty law that targets only indigent people into modern social welfare law that meets the special needs of vulnerable people.
C. Outreach Services
The above-mentioned community-based approach and Legal Social Work are closely related to the “Outreach” services where legal aid providers reach out to the location of relevant organisations and vulnerable clients.
5.10. Legal Aid before Regional Human Rights Systems
There is no region-wide system of human rights protection in the Asia-Pacific region. However, Japanese researchers are paying attention to the development at, for example, European Convention on Human Rights and European Court of Human Rights, and putting emphasis on establishing the similar mechanism in Asia.
5.11. Alternative Sources of Legal Assistance
A. Aid Services Entrusted by Japan Federation of Bar Associations
In addition to the above-mentioned publicly-funded legal aid provided by the JLSC, Japan Federation of Bar Associations (JFBA) entrusts some services to JLAC and provides funding. These services, including providing grants for legal fees, are intended for those not covered by the publicly-funded civil legal aid or the court appointed defense counsel system as prescribed in the Act in the interest of human rights protection. The amount of money JFBA spends on the entrusted services in recent years has reached an average of 15 billion yen (approx. USD 136 million) per year.
The entrusted services include: (1) aid for defense of criminal suspects, (2) aid for attorney attendants in juvenile cases, (3] legal support for victims of crime, (4) legal support related to refugee adjudication, (5) legal aid for foreign nationals, (6) legal support for children, (7) legal support for mentally disabled persons, (8) legal support for persons in a state of insanity, etc., and (9) legal support for the aged, disabled, or homeless people.
B. Bar-Funded Legal Services (Bar-Funded Law Offices, Legal Counseling Centers, and Duty Attorney System)
In addition to the above-mentioned publicly-funded legal aid provided by the JLSC, Japan Federation of Bar Associations (JFBA) and local bar associations play a significant role to enhance access to justice in Japan and have established the three systems discussed below.
Firstly, the Bar-Funded Law Offices: JFBA has contributed to create a system to ensure that lawyers are available and within reach anywhere in the country, and eliminate areas where the number of lawyers is extremely low. As part of this, JFBA, local bar associations, and regional federations of bar associations established “Himawari Fund Law Offices” in the rural areas. While these Himawari Fund Law Offices are operated by private practice lawyers, JFBA, local bar associations, and regional federations of bar associations provide them with assistance, including coverage of office opening and administrative costs and operational assistance , on the condition that the lawyers provide a certain level of public service in the form of court-appointed defense attorneys and legal aid services on civil cases. Some local bar associations have also established “Public Law Offices” in order to improve access to justice for people living in urban areas, especially those who may have difficulties finding lawyers for financial and other reasons. There are also “Public Law Offices” that mainly provide legal services for foreign nationals or provide clinical programs at law schools.
Secondly, the Legal Counseling Centers: Local bar associations have established legal counseling centers to provide all residents with access to legal consultations anytime, anywhere. The counseling centers handle a variety of issues, including multiple consumer loan problems (persons who borrow money at high interest from many financing companies), family matters, and workplace-related matters, among others. Some of the counseling centers provide night-time consultation services.
Thirdly, the Duty Attorney System: The Duty Attorney System is a private-sector system created by bar associations in order to effectively guarantee the right of arrested suspects to defense counsel at the arrested stage, during which time no court-appointed attorney system is available. When requested by an arrested suspect, the duty attorney will visit the police station and interview the arrested suspect free of charge, regardless of the arrested suspect’s nationality or visa status. If the suspect is a foreign national, an interpreter will accompany the duty attorney.
Chart. 15. Bar-Funded Legal Services
|Bar-Funded Law Offices||45 offices in rural areas as of 2018
13 offices in urban areas as of 2018
|Legal Counseling Centers||50 local bar associations are setting up Legal Counseling Centers in each region and about 300,000 [sessions of] legal counseling are provided nationwide each year in recent years. Whether services are free or not depends on the local bar associations.|
|Duty Attorney System||52,980 visits to police station as of 2017. Services are free.|
C. Free Legal Consultation by Municipalities Nationwide
Municipalities nationwide provide free legal consultation services for local residents in each municipal office. Lawyers from local bar associations give free legal advice on matters such as marriage, divorce, incident, accident, labor issues for local residents in each municipal office under an agreement between municipal office and local bar association.
D. Legal Expenses Insurance
Another principal source of help in addition to legal aid is the legal expenses insurance in Japan. The number of legal expenses insurance policies sold, which include automobile insurance policies that cover legal expenses, is rapidly increasing in recent decades. 26,171,407 legal expenses insurance policies were sold in 2016 and 26,943,888 were sold in 2017.
Chart. 16. Number of legal expenses insurance policies sold
6. COSTS OF RESOLVING DISPUTES WITHIN THE FORMAL JUDICIAL MACHINERY
6.1. Overview of Judicial Costs for Litigants
Litigants have to pay various judicial costs at the time of initiating court proceedings (including litigations) and during the court proceedings. In principle, the defeated party will have to bear such judicial costs incurred in the proceedings at the end.
The details of judicial costs are set forth in the Act on Costs of Civil Procedure (the “Act”).
Judicial costs include initial filing fee, process service cost, travel expense and daily allowance, translation fee, and various other costs provided in the Act.
It is important to note that attorney’s fees are not included in the judicial costs. Attorney’s fees have to be borne by the litigant who hires the attorney. The prevailing party cannot recover his/her out-of-pocket attorney’s fee from the defeated party. The attorney’s fees problem is discussed at Section 2.
Among the abovementioned judicial costs, the major cost that may affect access to the court is the initial filing fee payable to the court by the initiating party at the time of case filing.
The initial filing fee for the litigation is calculated based on the value of the subject matter of the case, as follows:
(i) the portion up to 1 million yen (approx. USD 9,091) of the value of the subject matter of the case: 1,000 yen (approx. USD 9) per 100,000 yen (approx. USD 909);
(ii) the portion of the subject matter value in excess of 1 million yen (approx. USD 9,091), up to five million yen (approx. USD 45,455): 1,000 yen (approx. USD 9) per 200,000 yen (approx. USD 1,818);
(iii) the portion of the subject matter value in excess of 5 million yen (approx. USD 45,455) to 10 million yen (approx. USD 90,909): 2,000 yen (approx. USD 18) per 500,000 yen (approx. USD 4,545);
(iv) the portion of the subject matter value in excess of 10 million yen (approx. USD 90,909) to 1 billion yen (approx. USD 9,091,000): 3,000 yen (approx. USD 27) per 1 million yen (approx. USD 9,091);
(v) the portion of the subject matter value in excess of 1 billion yen (approx. USD 9,091,000) to 5 billion yen (approx. USD 45,455,000): 10,000 yen (approx. USD 91) per 5 million yen (approx. USD 45,455);
(vi) the portion of the subject matter value in excess of 5 billion yen (approx. USD 45,455): 10,000 yen (approx. USD 91) per 10 million yen (approx. USD 90,909).
Therefore, for example, in the case where the value of the subject matter of the case is 10 million yen (approx. 90,909 USD), the initial filing fee that the filing party has to pay is 50,000 yen (approx. USD 455). If the subject matter value of the case is 1 billion yen (approx. USD 9,091,000), the filing fee will be 3.02 million yen (approx. USD 27,455).
In the case of appeal, the filing fee is 150% of the initial filing fee as calculated per the above formula. In the case of final appeal, the filing fee is 200% of the initial filing fee as calculated per the above formula.
6.2. Exemption from Judicial Costs
6.2.1. The name of and legal basis for exemption from judicial costs.
The Code of Civil Procedure provides for “judicial aid”. This judicial aid is not an exemption” from the judicial costs, but rather a grace period to defer the payment. Thus, the litigant who is awarded “judicial aid” (i.e., grace period for the deferment of payment) is required to pay later all or part of the deferred costs as decided by the court according to the prevailing proportion.
6.2.2. What are the eligibility criteria for exemption from judicial costs?
Article 82 of the Code provide as follows:
For a person who lacks the financial resources to pay the expenses necessary for preparing for and conducting a suit or person who will suffer substantial detriment in his/her standard of living by paying such expenses, the court, upon petition, may make an order to grant judicial aid; provided, however, that this shall apply only where it cannot be said that such person is unlikely to win the case.
6.2.3. What is the process for applying for exemption from judicial costs?
Upon petition by a party, the court reviews and decides the petition. The decision on the award is subject to appeal.
In the case of a litigation where legal aid is given by JLSC, if the petition for the judicial aid is rejected by court, the judicial costs may be fully or partly [paid by JLSC] upon application by the person seeking aid.
6.2.4. May a person who has been exempted from judicial costs nonetheless have to repay any amount of the judicial costs to the government, judiciary, legal aid agency or other at the end of the judicial process or at some other time? In Japan, are legally aided litigants who lose their case liable to pay the other side’s legal expense/costs?
As stated above, judicial aid is provided in the form of a deferment of payment. The awarded litigant who loses the case is subject to being ordered to make payment to the court or the opponents who incurred the judicial costs.
6.2.5. Overall: do costs and fees discourage access to justice in Japan?
As stated above, attorney’s fees are not included in judicial costs.
As the initial amount of judicial costs is relatively low compared to the amount of attorney’s fees, the amount of attorney’s fees is a much more important factor for access to the courts. However, since it is still true that judicial costs tend to discourage access to the court by ordinary people, the bar associations have been proposing reductions of the costs.
6.3. Mechanisms to Reduce Costs by Variations to Courts and Procedures
There are summary courts, which have jurisdiction over disputes the value of which is Yen 1.4 million (12,727 USD) or less. However, for the summary courts, no special lower court-cost schedule exists and the ordinary court-cost is applicable.
For the summary courts, simplified procedures apply. The litigant can file a case verbally and need not prepare written documents for his/her allegation. The summary courts prepare samples of complaints for the convenience of pro se litigants.
For monetary disputes of Yen 600,000 (5,455 USD) or less, small claim procedures may apply with the application of the plaintiff and consent of the defendant. Under this procedure, principally only one session is held and the court may give a judgement with installment payments, payment deferment, or exemption of delinquency charges.
There is no requirement regarding the representation by attorneys-at-law in the summary courts. Licensed judicial scriveners may represent litigants in the summary courts.
In the summary courts, there are judicial commissioners who assist an attempt to arrange a settlement or attend the trial and give their opinions. Most of them are non-lawyers and they are expected to reflect healthy social common sense in solving the disputes. It is said that the judicial commissioners tend to function to alleviate the inequality of the parties in the representation at the court, in particular, in case where landlords, loan companies or the other economically strong entities are counterparties of low-income parties.
7. PROTECTION OF DIFFUSE AND COLLECTIVE RIGHTS
7.1. The circumstances under which merger and simultaneous resolution are possible
The Act on Special Measures Concerning Civil Court Proceedings for the Collective Redress for Property Damage Incurred by Consumers was enacted in 2013.
The process under this act consists of two stages.
The first stage is an Action for Declaratory Judgment on Common Obligations. This action may be commenced where property damage is incurred by a considerable number of consumers in connection with consumer contracts. The action seeks a declaratory judgment by the court finding that the defendant company has an obligation to pay money to these consumers based on factual and legal causes common to such consumers, except for cases where a claim for payment of money is filed by a consumer who has no grounds due to circumstances specific to that consumer.
The second stage is the holding of Simple Determination Proceedings. This stage entails court proceedings whereby, on the premise of the results of litigation pertaining to an Action for Declaratory Judgment on Common Obligations (hereinafter referred to as “Litigation Seeking Declaratory Judgment on Common Obligations”) after hearing of both parties.
On the basis of the proofs of claims filed with the court under the provisions of this Act, the other party states its approval or disapproval of claims. The examination of evidence is limited to documentary evidence in order to solve dispute promptly.
Thereafter, the presence or absence and the contents of a valid claim are determined based on either: (i) such approval or disapproval, if no notice to dispute the approval or disapproval is made; or (ii) an order by the court, if a notice to dispute the approval or disapproval is made.
7.2. Who is authorized to initiate these procedures for the protection of diffuse and collective rights?
A “Qualified Consumer Organization” may provide services related to redress for damage only if it has received certification from the Prime Minister.
7.3. Policies that encourage counsel to litigate group claims
Unfortunately, there is no related policy to encourage counsel to initiate procedures.
7.4. Other present policies and trends for or against encouraging such procedures
There are no policies and trends for encouraging such procedures.
7.5. Problems of notice and, more generally, the right of the parties to be heard
In order to contribute to redress for property damage incurred by target consumers, a specified “Qualified Consumer Organization” must strive to provide the target consumers with information on the filing of an Action for Declaratory Judgment on Common Obligations, the contents of the final and binding judgment of Litigation Seeking Declaratory Judgment on Common Obligations, and other necessary information.
When an Order of Commencement of Simple Determination Proceedings is made, the Petitioner Organization of the Simple Determination Proceedings, unless there are justifiable grounds, must notify the known Target Consumers of a written order stating the main text of the order and its outline of the reasons in writing or by Electronic or Magnetic Means (meaning the means of using an electronic data processing system or any other means of using information and communications technology).
7.6. The effects of decisions for named and unnamed, present and absent parties
A final and binding judgment of Litigation Seeking Declaratory Judgment on Common Obligations is also effective against Specified Qualified Consumer Organizations which are not parties to the Litigation Seeking Declaratory Judgment on Common Obligations or Consumers Holding the Filed Claim.
7.7. An appraisal of the efficacy and equity of the procedure, and the benefits accruing to litigants
Diffuse rights are those of an indivisible nature which belong to an indeterminate group of people and the amount of property damage is small but it is difficult to prove the facts and legal aspects. Therefore special procedures are necessary.
8. PROFESSIONAL LEGAL ETHICS
8.1. Effective self-regulation
8.1.1. Autonomy of attorneys
In order for attorneys to realize their mission to protect fundamental human rights and achieve social justice, attorneys must not yield to any authority and must remain independent and free from any outside organizations. Therefore, the right of complete self-governance is granted to the JFBA. The screening of attorneys and registration procedures are conducted solely by the local bar associations and the JFBA. The JFBA may establish the rules regarding the organization and operation of the JFBA itself. Further, disciplinary actions against attorneys are taken by the local bar associations and the JFBA. The finances of the bar associations and the JFBA are funded almost entirely by dues from the members. As stated above, supervision of attorneys is conducted solely by the JFBA and local bar associations and, as such, any person becoming an attorney is also required to become a member of the JFBA and a local bar association.
8.1.2. Disciplinary Actions against Attorneys: Requests for and Execution of Disciplinary Actions
Attorneys do not fall under the supervision of any governmental organization. Instead, the JFBA and the bar associations to which attorneys belong are empowered to take disciplinary action against attorneys. An attorney becomes subject to disciplinary action if his or her actions violate the Attorney Act or the Articles of Association of the bar association or the JFBA, jeopardize the good order of or the trust in the bar associations, or constitute “misconduct of a disgraceful nature,” whether in the course of or outside professional activities.
8.1.3. Basic Rules on the Duties of Practicing Attorneys
In order to articulate the ethical and professional codes of attorneys, the JFBA has established and published the Basic Rules on the Duties of Practicing Attorneys.
8.1.4. Help Desk for Citizens and Dispute Mediation System
In addition, each bar association provides a help desk to receive complaints from citizens about attorneys and a dispute mediation system to resolve any trouble between clients and attorneys. The JFBA has conducted surveys on the operation of such systems and has exchanged experiences to improve them. The JFBA has considered the means to enforce discipline among attorneys and has implemented such means.
8.2. Legal ethics program in law school
Legal ethics permeate law school programs. Students must choose one subject from legal ethics, criminal practice or civil practice.
Legal ethics is not a mandatory course in undergraduate or postgraduate law curriculums.
There is no general requirement that law students pledge to uphold legal and social values. However, some law schools might require students to give such a pledge upon entry.
8.3. Legal ethics in the bar examination and continuing professional development
Legal ethics is not the subject for the bar examination.
The JFBA has made it compulsory for all of its members to participate in ethics training courses and all attorneys are now required to receive training on attorneys’ ethics periodically since April 1998.
8.4. Lawyers’ admission ceremony and the content of the oath/affirmation of aspiring lawyers: Legal values lawyers commit to defend/uphold
Article 1 of the Attorney Act stipulates as follows:
Article 1 (1) An attorney is entrusted with the mission of protecting fundamental human rights and achieving social justice.
(2) An attorney shall, in keeping with the mission specified set forth in the preceding paragraph, perform his/her duties in good faith and endeavor to maintain the social order and to improve the legal system.
The legal values to which lawyers commit are those contained in Article 1 of the Attorney Act as stated above, and lawyers swear an oath to defend/uphold these values at their admission ceremonies.
8.5. Lobbying activity and efforts made to improve legislation
8.5.1. Legal Aid and Assistance Projects
The JFBA established the Japan Legal Aid Association in 1952 and has continuously supported its projects, such as the project for temporary exemption from court costs, and has been widely campaigning for legislation to realize state aid to legal aid projects. As a result of such activities, the Civil Legal Aid Act, which stipulates that it is the responsibility of the state to provide civil legal aid, was enacted in April 2000. Civil legal aid projects of the Japan Legal Aid Association were handed over to the Japan Legal Support Center (Houterasu) in October 2006. In addition, other projects that were conducted independently by the Japan Legal Aid Association have been organized into the 9 areas as projects to be conducted by the JFBA as legal aid services. Since October 2007, the JFBA has entrusted these 9 areas of legal aid services to the Japan Legal Support Center (Houterasu) as already mentioned in section 5.11.
8.5.2. Elimination of Shortages and Uneven Distribution of Attorneys
There are 203 district/family court branch jurisdictions nationwide, and the jurisdictions with only one or no attorney are called “zero-one attorney districts.” In such districts, citizens and companies are forced to endure the inconvenience of not being able to consult with an attorney or having to travel a long distance to receive consultations from an attorney in case of legal troubles. The JFBA resolved in its 1996 General Meeting to address improving such circumstances. Subsequently, it established legal consultation centers and public offices (Himawari Fund Law Offices) in such districts suffering from a shortage of attorneys in cooperation with local bar associations, regional federations of bar associations, and municipalities. Moreover, the JFBA provides financial support to attorneys who start practices in such districts, and it also secures staff attorneys who work at the Japan Legal Support Center (Houterasu). As a result, although there were 78 “zero-one attorney districts” in 1996, they were eliminated in 2008, and so were the “one-attorney districts” for the first time in 2011. Subsequently, however, there is one “one-attorney district” as of March 1, 2018. The JFBA will continue with every effort to eliminate shortages and uneven distribution of attorneys based on the actual situation in each district.
8.6. Interrelationship between professional legal ethics and pro bono, information and statistics
Article 8 of the Basic Rules on the Duties of Practicing Attorneys (mentioned in section 8(a)) stipulates that “Lawyers shall endeavor to participate in and practice pro bono activities appropriate to their mission.”
Although this Article 8 is not a mandatory rule, not a few local bar associations have mandatory rules to request attorneys to engage in pro bono activity. Nationwide information and statistics regarding pro bono do not exist but those local bar associations which have such mandatory rules keep records respectively.
8.7. Promising regulatory and educational initiatives and innovations directed towards strengthening professional identity and legal ethics
The Attorney Act specifies the mission of attorneys as “protecting fundamental human rights and achieving social justice”. In other words, attorneys shall not only render services in the interest of their clients but also endeavor to protect human rights and achieve social justice through their practices. The JFBA and local bar associations are trying to set the promising regulatory and educational initiatives directed towards strengthening professional identity and legal ethics by advocating the mission of attorneys described above and encouraging each attorney to participate in the human rights committee which have been established by bar associations, such as the Human Rights Protection Committee, the Gender Equality and Women’s Rights Committee, the Committee of Human Rights of Children, Committees to Support Victims of Crime, Committees to Protect Peace and Maintain Constitutionalism, Committees for Consumer Protection, Committees for Disaster Reconstruction Assistance Activities, etc.
8.8. Global (or regional) code governing lawyers’ conduct
There is no global (or regional) code governing lawyers’ conduct in Japan.
9. TECHNOLOGICAL INNOVATION AND ACCESS TO JUSTICE
Japan is one of the leaders in the world of information technologies. However, in regard with use of such technologies for legal practices enhancing access to justice, Japan is still in the process of seeking the best way to adopt the latest technologies in order to meet various requirements in provision of legal services and people’s needs of today.
The latest development as of December 2019 is the announcement of a governmental plan of judicial reform in civil procedure. The plan includes the proposal of concrete steps for overall transformation of civil procedure corresponding to information technology of today. This consists of three dimensions, that is, submission of documentation (e-Filing), on-line management of procedures and documents (e-Case Management), and realization of on-line court hearings (e-Court). Such transformation will be introduced in practice in accordance with a 3 step realization plan. The first step (use of web-conferences and tele-conferences for preparatory procedures of court hearings) will start in February 2020 at 8 District Courts and at the Intellectual Property High Court. As to the following 2 steps, which require certain amendments of legislation, the official schedule for implementation is to be announced by the end of March 2020.
The plan is expected to be a tool for better access to justice, especially for people with disabilities. At the same time, one of the major concerns is how to provide sufficient assistance for people who have problems with utilization of information technologies.
9.1. The general situation regarding access to technology
In Japan, internet users increased in the 2000’s upon diffusion of broad band and mobile tools. Thereafter, the rapid spread of smartphones in the 2010’s triggered personalization and mobilization of the terminal units used to access the internet, which resulted in diversified usage of such units.
9.1.2. Internet access of people with problems of A2J
No particular research or statistics on internet usage focusing on people with problems of access to justice have been made to date. The White Paper of Information and Communication (2018) reported that there is a gap in accordance with age groups. In the year of 2017, more than 90 percent of individuals who were at an age between 13 years old and 59 years old had used the internet within the past one year, while 46.7 percent of persons aged in their 70’s and only 20.1 percent of persons aged in their 80’s had internet access during the same period of time.
9.1.3. Broadband coverage
Broadband coverage extends throughout the country. By the end of 2006, broadband connection was already available for 95 percent of the households in Japan (48.59 million out of 51 million households).
9.1.4. Spread of smartphones
In 2018, 79.2 percent of households in Japan had smartphones, while 64.7 percent of individuals had smartphones.
9.1.5. Use of unsmart mobile phones
In 2018, 95.7 percent of households in Japan have mobile phones (either smart or unsmart), while 84.0 percent of individuals have such mobile phones. Therefore, it is possible to estimate that 16.5 percent of households and 19.3 percent of individuals have unsmart mobile phones.
9.1.6. Usage of text messages/SMS
Text messages/SMS is widely available as a function of mobile phones. However, in contrast to other jurisdictions, it does not play a significant role in Japan as a channel of communication.
9.2. The usage of technology for non-legal public services
Technology is used for provision of public services in certain cases. In Japan, the most advanced practice in usage of new technology would be found in public information services and emergency assistance during times of natural disasters, such as typhoons, heavy rainstorms or snowstorms, earthquakes, or tsunami.
9.3. The usage of technology for legal practitioners, particularly those concerned with low income clients
Basic productivity tools such as Microsoft Office packages are commonly used among legal practitioners.
Specific legal client management packages are often used, particularly in bankruptcy cases.
Communication by emails is common between lawyers or between lawyers and clients, but it has not yet been introduced for communication with courts or the Japan Legal Support Center (JLSC), the public legal aid service provider.
Communication by SMS is not common in general (see 9.1.6 above).
9.4. The usage of technology for charities or non-commercial entities providing legal services to low income clients
9.4.1. Usage of technology in general
Whether any non-commercial organizations use technology in their work may depend on the degree of internet access of the targeted low income clients of each organization. In this regard, for example, Japan Association for Refugees (JAR), a non-profit organization which provides various support (including legal support) for refugees and asylum seekers in Japan, would be one of the most active users of the internet.
9.4.2. Cost consideration
The cost of using technology in provision of services is significant. In the case of JAR (see above), a part of its website construction is financially supported by the Welfare and Medical Service Agency (WAM), one of the sources of public funds for social welfare.
9.4.3. Usage of technology
The use of technology may also depend on the types of activities undertaken by the organization. In the case of JAR (see above), their website firstly provides various information for refugees or asylum seekers, including legal information. It is open for their clients to send any inquiries, including those on legal matters, through the website. Useful documents, including various forms for application for refugee status, etc., can be downloaded with written instructions. For supporters of the organization, donations can be made through the website.
9.4.4. Usage of SMS or Email to communicate with users
The use of such communication may depend on the accessibility and availability to SMS or email of the targeted users. In the case of JAR (see above), their website invites their potential users to contact JAR by e-mail in the event that the inquiry format on the website does not work well.
9.4.5. Initial contact on website
In the case of JAR, initial contact by users is available on the website (see above).
9.4.6. Phone or video connections to remote locations
Such connections may depend on accessibility and availability of phone or video connections of the targeted users. JAR (see above) has a toll-free phone number for refugees and asylum seekers, shown on the top page of their website. Despite geographical distance, the phone is used as one of the most effective tools of communication.
9.5. Is technology used for the following:
9.5.1. assisting in the referral of people to appropriate provisions or to identify their eligibility for services?
Japan Legal Support Center (JLSC), a publicly funded corporation providing legal aid, provides legal information services. JLSC’s website is designed as an information desk for people in need of legal services. All the details of the means test and merit test required to be eligible either for free legal consultations or provision of legal aid for representation at court are available on the JLSC website. However, applicability of such conditions to each individual case needs to be checked at local JLSC district offices. Information on the basics of laws and available remedies can be found through research of around 5,000 Q&As on the website. Information on local sites for free legal consultation can also be found though web research of JLSC’s database, which has information on more than 20,000 consultation sites.
9.5.2. empowering and helping self-represented litigants to take their own cases (whether through government-led online initiatives or services set up by legal aid providers)?
As of December 2019, except for those discussed in the recent plan of judicial reform featuring information technology (see below), there are no initiatives or services particularly designed for self-represented litigants. However, the following services are available:
・ web research of 5,000 Q&As, provided by JLSC, which covers most of the questions on procedural matters at court (see above);
・the website of the Supreme Court provides basic information covering details of court procedures, together with a download service providing a form of application of claim to the summary courts (applicable to cases involving less than 1.4 million yen (approximately 140 USD)) or family courts; and
・the website of the Japan Federation of Bar Association (JFBA) provides a set of downloadable forms of basic documents (in Word or PDF format) required [for bringing a civil proceeding].
In the course of discussion of judicial reform to introduce information technology, one of the largest issues is how to empower and help self-represented litigants. According to the discussion records, “support for self-represented litigants” should be designed and provided by courts and JLSC in collaboration with bar associations and each lawyer.
9.5.3. assisting in the delivery of pro bono services by legal practitioners?
In Japan, in contrast to other jurisdictions, there is no clear definition of “pro bono” services, although local bar associations often have a regulation prescribing the obligation of attorneys to engage in public interest activities.
To date, we cannot find particular initiatives by bar associations to coordinate pro bono service providers and clients in need of free legal services either by using technology or not. After the 2000s, however, there are a few non-profit organizations established by attorneys and other neighboring professionals, which provide free legal consultation by means of pro bono services. These organizations usually have a specific targeted client base, such as artists, musicians, or non-profit organizations. In their practices, free consultations are often available either by face-to-face meetings, by emails, or by skype.
9.5.4. support for paralegals or other workers in remote locations away from their offices?
The video phone consultation service at Futaba would be an example of such support. This service provides free legal consultation by contracted attorneys using video phone, and is available for 2 days a week at the Futaba branch of the Fukushima district office of JLSC, located within 20 km from the site of the nuclear power plant that suffered an accident in Great East Japan Earthquake and Tsunami in 2011. Without this service, the only legal information service available would be the service provided by non-lawyer staff at the site for those 2 days.
9.5.5. campaigning and advocacy, e.g. through social media?
The Japan Legal Support Center (JLSC) actively uses social media, especially twitter, for promotion of its call center and provision of the latest information on concrete services for victims of natural disasters.
The JFBA uses Twitter, Facebook and Instagram. Local bar associations often use Facebook and/or Twitter to promote various campaigns in regard to access to justice.
9.6. Usage of technology regarding publicly funded legal services
In Japan, publicly funded legal services are delivered by private practitioners who have a contract with the Japan Legal Support Center (JLSC). As of 2019, such communication channels between contract lawyers and JLSC has been limited to telephone and facsimile, although JLSC is seeking appropriate use of information technology for communication.
JLSC does not encourage the contract lawyers to use technology to extend their services.
9.7. Use or development of online dispute resolution system
In Japan, an official discussion for introduction/implementation of an online dispute resolution system was recently started in September 2019. The committee, organized at the Prime Minister’s Office, states that the discussion is aimed to elaborate a basic policy, by March 2020, concerning promotion of utilization and enhancement of capacity of civil procedures, including alternative dispute resolution procedures by using information technology and artificial intelligence (online dispute resolution (ODR)), as a part of improvement of the business environment, corresponding to the variety of disputes of today.
9.7.1. Which types of cases can online dispute resolution be used for?
This question is one of the themes under discussion at the committee. More concretely, the areas of law and types of disputes for which ODR would be adaptable in an early stage, or for which ODR could be prepared to adapt in the future, will be listed up. The discussion records indicate that cases involving a volume of typical claims having a low value would be expected to be targeted disputes. It also refers to disputes in electronic commerce, family issues such as divorce or succession, disputes regarding contracts between small to mid-sized enterprises, disputes regarding traffic accidents, and disputes involving financial transactions, as examples.
9.7.2. Whether mandatory or voluntary (if voluntary, who needs to agree in advance)
This question may be under discussion at the committee.
9.7.3. Provisions to ensure that litigants who lack the necessary education, language or technical skills are not at a disadvantage
This point is discussed as part of an environment to be ensured to realize an active usage of ODR. According to the discussion records, it is necessary to prepare an appropriate environment by paying attention to the level of usage of telephones or information technologies, and the internet environment of a variety of users, including the elderly.
As to language, ODR is expected to provide easier access to the dispute resolution process for foreigners, who often have language problems.
9.7.4. Challenges perceived as a result of proposed system.
This point is still under discussion. It seems that (1) challenges of the current system of alternative dispute resolution and (2) challenges of utilization of information technology and artificial intelligence in legal services, are both applicable in the case of ODR.
9.8. The successful use of technology in jurisdiction to provide legal services in innovative ways
9.8.1. Legal Information Service of JLSC
JLSC provides legal information services using 3 channels, that is, its website, its call center, and walk-in information desks. The call center receives around 1,000 calls a day, or around 300,000 calls a year. From its establishment in 2006 through the end of January 2019, it has served more than 4,000,000 clients with legal information through telephone or e-mail communications. The information provided by operators at the call center is based on JLSC’s database of 5,000 Q&As and a nation-wide list of consultation sites. Database research is also available on the JLSC website (as to the services available through its website, please see (e) above). The call center publishes statistics of calls and e-mail inquiries from clients, and such statistics have been used as evidence to show certain needs of society for amendment of laws or new legislative initiatives. Recently, a technical legal assistance initiative was established to set up a call center in Africa modelled on the call center and legal information services of JLSC (please see 12 below).
9.8.2. On-line advice forum for legal practitioners
The “Keiji Bengo Forum” (Forum of Criminal Defenders) is the largest on-line advice forum of legal practitioners. It was started in 2005 among several lawyers for exchange of legal and technical information and experience as practitioners for criminal matters, including those related to the saiban-in (lay-judges) system introduced in 2009. Currently, the forum consists of more than 4,000 practicing lawyers and is thought to be an indispensable source of information among criminal defenders. Its website provides a useful research database for practitioners.
The “Lawyers’ network for foreigners (LNF)”, established in 2009 would be another successful forum. This consists of more than 1,500 lawyers who are engaged in cases involving foreigners, who often have problems related to language and culture gaps, foreign laws and practices, foreign jurisdictions, etc. The website offers research of past inquiries and website viewing of training sessions for practitioners.
9.8.3. E-learning system of JFBA
The E-learning system is a part of the continuing education system of the JFBA, a mandatory bar for licensed lawyers in Japan. It offers more than 400 courses which cover nearly everything a practicing lawyer should know, from the very basics to highly technical matters, including details of the latest updates. The original sessions are prepared and given by real experts in each area. The system can be accessed either by PC, tablets or smartphones and is appreciated very much among young generations.
9.9. Activities of internationally-focused organizations
In Japan, internationally-focused organizations such as HiiL or the Open Society do not engage in significant activities in relation to usage of technology in the judicial domain, although members of such organizations sometimes appear in conferences or forums organized and held in Japan.
10. UNMET LEGAL NEEDS
In order to effectively implement legal aid, an empirical survey must be conducted regarding where and what kinds of needs there are, the fulfilment thereof, and if not fulfilled, the reason that they are not fulfilled. Based on the findings, we must review what collaborations and measures are needed to meet the needs using the networks established with the relevant local organisations.
Therefore, the Japan Legal Support Center and Japan Federation of Bar Associations conducted several legal needs surveys in recent years as follows.
10.1. Legal Needs Survey for General Public, Homeless People, and Legal Aid Users
When implementing this survey, JLSC referred to the legal needs surveys that had been conducted in other countries.
This survey, conducted by JLSC in 2008, consisted of a general approach that targeted the general public, homeless people, and legal aid users. 1,636 members of the general public and 265 homeless people responded to the survey’s questionnaires.
According to the results of the general survey, 25.2% of the respondents had experienced some legal problem in the past 5 years, and the number of legal problems was an average of 1.8 per person. The same percentage (25.2%) of the respondents had experienced some welfare problem, and 38.5% of the respondents had experienced either some legal or welfare problem within the past 5 years. The most frequently experienced legal problems were related to workplace, inheritance, and neighbourhood, while pension, medical insurance, and elderly problems accounted for most of the welfare problems.
The problems of homeless persons greatly exceeded those experienced by the general survey respondents, in terms of both frequency and the number of cases. For legal and welfare problems combined, 83.5% of homeless persons experienced some problem in the past 5 years, and the average number of problems was 2.8 per person. The most frequently experienced legal problems were: debts (44.2%), workplace problems (29.1%) and family registration and/or resident registry problems (26.4%). The most frequently experienced welfare problems were: lack of access to welfare (24.5%), medical insurance (18.5%) and pension receipt problems (15.8%).
In the general survey, 73.5% of the respondents who encountered some legal problem sought some kind of consultation, but only 29.7% actually received professional legal consultation services. The remaining 26.5% did not consult anyone. The reasons for not consulting were mostly that the respondents did not know what to do or felt that any effort would be meaningless. Moreover, while the reasons for not getting a consultation given by respondents in younger generations were primarily “all efforts seemed meaningless” (33.3%), “don’t know what to do”, “taking action is bothersome” and “taking action seems difficult” (22.2% respectively). The respondents in older generations added “want to resolve the problem on my own” and “want to keep the problem to myself” as reasons, with increasing frequency as age went up. Furthermore, respondents in the younger generations are characterised by their notably low rate of seeking professional legal consultation (7.7%).
With regard to welfare problems, the professional consultation rate itself is very low (2.4%). Therefore, there is a need for legal professionals to establish a support system for welfare problems as well as to offer information and legal education.
Based on the results of the needs survey, JLSC has been implementing the development of the following programs:
・expansion and improvement of legal education at schools and workplaces; implementation of legal education based on youth behaviour patterns (storytelling-like information provision, etc.); improvement of service at the call centre and other contacts where users can casually receive legal information regardless of the severity of the problem; and stronger collaboration with relevant organisations;
・establishment of legal aid type support for welfare problems; and
・establishment of legal aid type support in the intermediate space between legal consultation aid and representation aid. For example, the establishment of types of support that offer consultation and other legal support that does not go as far as representation aid, such as creating application documents, simple investigation, making calls, and accompaniment to the relevant office to submit an application.
10.2. Legal Needs Survey for Victims of Earthquake and Nuclear power plant disaster
A magnitude 9.0 earthquake hit east Japan on 11 March 2011, and the subsequent tsunami, fires and collapse of buildings and houses brought about a devastating disaster. Furthermore, radioactive materials released by the multiple accidents at the Fukushima nuclear power plant have caused and continue to cause great fear and threatens the safety of not only the residents in the immediate vicinity of the plant but also a wider population. The disaster areas include many rural areas suffering from shortages of attorneys and it is hard for residents and many evacuees to obtain access to legal aid.
In 2012 and 2013, JLSC conducted a legal needs survey of the victims affected by the disaster.
1,598 victims returned questionnaires to JLSC and an in-depth interview survey of 24 victims was conducted.
According to the result of the survey, 43.0% of the respondents had experienced some legal problem, and the number of legal problems was an average of 2.52 per person. Considering 25.2% of the respondents had experienced some legal problems and the number of legal problems was an average of 1.8 per person in the above mentioned legal needs survey for the general public conducted in 2008, it was clear that victims of the disaster experience much more legal problems, and the number of legal problems has become much higher than usual.
The consultation rate with lawyers was 30.6% and the primary reasons for not consulting were that victims felt that any effort would be meaningless (30.8%), that consultation will cost money (28.7%), and that taking action is bothersome and takes time (28.7%). The survey suggested that it is necessary to inform victims of the effectiveness of consulting with lawyers notwithstanding the victims’ condition of being severely damaged and feeling a sense of helplessness.
10.3. Legal Needs Survey for Elderly People
The JFBA conducted a legal needs survey of elderly people in 2016 and 2017. This survey targeted not the elderly people themselves, but the social caseworkers specialized in elderly issues because the elderly people often have cognitive impairment and cannot accurately answer surveys by questionnaire or face-to-face surveys.
1,046 social caseworkers returned questionnaires to the JFBA and 1,269 individual cases were reported.
According to the result of the survey, the assisted elderly people were not aware of any problems in most of the cases (56.2%). Even the elderly people who were aware of problems (296 cases, 26.9%) were not likely to consult with others.
Problems were most likely to become tangible via supporters such as care managers, home caregivers, caregivers at nursing-care centres, district welfare officers, neighbours etc. (621 cases, 48.9%).
Even after supporters brought problems to social caseworkers at local elderly care management centres, they were likely to consult with non-legal professionals to try to resolve problems. Lawyers were used for only a minority of problems (19.1%).
Caseworkers often pointed out in in-depth interviews that they have a tendency to consult lawyers at a late stage after damage has been done and sometimes after the case has become too late to file.
Therefore, this survey demonstrated that that legal needs of elderly people have a tendency not to become tangible to lawyers compared with those of other generations and there is a huge amount of unmet legal needs behind the elderly people.
11. PUBLIC LEGAL EDUCATION
11.1. Public legal education
In response to the recommendations of the Judicial Reform Council, which suggested the importance of law related education, the Law Related Education Promotion Council was established in 2003. The Law Related Education Promotion Council consists of members of the Ministry of Justice, the Ministry of Education and Science, the Supreme Court, the JFBA, the Japan Legal Scrivener Association and other learned persons. The Council has been promoting law related education (LRE) mainly for students in school, and making efforts for diffusing LRE by developing education tools（such as courses regarding making rules, private law and consumer protection, the constitution, the judicial system, etc.）.
JLSC positions legal education as a part of information services, and is making efforts to provide to the general population legal knowledge, such as how to take action in response to consumer problems, along with JLSC’s efforts regarding LRE in schools. In 2017, 148 activities of legal education were reported. These include legal seminars, legal symposiums, lectures and other speaking events. In these activities, a variety of themes were addressed, such as debt, inheritance, consumer problems, etc. Legal education by JLSC is mainly provided by the staff lawyers and officials in the local offices.
11.2. Legal education in the schools
The Ministry of Education and Science reformed the government guidelines for teaching, and LRE was introduced to the curriculum of elementary schools in 2007. Later, it was also introduced to junior high schools and high schools. LRE in schools is carried out through several subjects（mainly in social studies）and special activities （classroom discussions, etc.）. In the elementary schools, the fundamental idea of law, decisions and rules, fundamental principles of private law, the Constitution and constitutionalism, and the function of the judiciary and significance of judicial participation are the main themes of LRE.
11.3. Likelihood of knowledge of non-legally trained people
People can read laws, but usually it’s not easy for them to understand the correct meaning and effect of them. In Japan, people who face legal problems can get information for solutions from the relevant local government office, consumer organizations, JLSC or other public institutions.
11.4. Public information campaigns
As an agency established by the Ministry of Justice, JLAC has been making efforts to provide information regarding the use of legal aid and how to access it through online services, pamphlets, leaflets and other tools. For suspects arrested in criminal case, the suspect is informed of his or her right to receive assistance of competent counsel. Suspects detained in jail before indictment and prosecuted defendants can require that counsel be assigned by the state to represent him or her.
11.5. Awareness of legal aid and other support services
According to research conducted every year, JLSC is known by over half of the citizenship recently. However, as the details of the business of the JLSC is not understood precisely, many applications for civil legal aid are made with assistance of the attorneys who first provided legal consultation. In 2018, the rate of people who recognized JLSC through its homepage and who accessed JLSC for required legal information was 38%. The local offices of JLSC, of course, receive applications for civil legal aid from the applicants directly.
12. GLOBAL EFFORTS ON ACCESS TO JUSTICE
An outline of global and regional efforts that promote access to justice in Japan is as follows:
A. Efforts and collaboration on access to justice in the Asian region:
・Regional Communication among Legal Aid Organizations: The Japan Legal Support Center (JLSC) has friendship relationships with public legal aid organizations in Asian countries, especially Korea and Taiwan. With Korean legal aid, a staff exchange training program has been implemented.
・Regional Forum: The Law Association for Asia and Pacific (LAWASIA): Japanese members are rather active in the regional forum. With regard to LAWASIA, Japan hosted its general conference in 2003 and again in 2017. At the 30th conference in 2017, a session was held regarding “Development and Challenges in Legal Aid in Asia”, followed by a round-table, “Legal Aid in Asia”, co-hosted by JLSC, the Japan Federation of Bar Association (JFBA) and the Japan International Cooperation Agency (JICA).
・Asian Access to Justice Conference: Since 2008, the JFBA has hosted the Asian Access to Justice Conference to discuss the latest issues and to share experiences of good practices for promoting access to justice in the region. The participants include bar associations from Australia, Cambodia, Indonesia, Laos, Malaysia, Mongolia, Myanmar, Singapore and Vietnam.
・Legal Assistance for Asian Countries: Since the late 1990’s, Japan has engaged in legal assistance for Asian countries including Cambodia, China, East Timor, Indonesia, Laos, Mongolia, Myanmar, Nepal, Uzbekistan, and Vietnam. The projects are supported by governmental funds through the Japan International Cooperation Agency (JICA), together with technical assistance provided by Japanese legal professionals and scholars. The objects of the assistance are varied, but all the projects have some elements to contribute promotion of rule of law and access to justice in the country.
・Legal Assistance for Asian Countries by JFBA: In addition to the above, the International Legal Cooperation Center (ILCC) of the JFBA has engaged in assistance for bar associations in Asian countries including Cambodia, Laos, Mongolia, and Vietnam. The project mainly focuses on training and capacity building of lawyers and promotion of access to justice by bar associations. Starting from 2019, the JFBA implemented a project to improve access to justice in Cambodia, Laos and Vietnam, with financial support from the Toyota Foundation.
In recent years, some Japanese practitioners have participated in the Asia Pro Bono Conference. This conference was launched in 2012, and is organized by BABSEACLE, a NGO founded in Thailand.
B. Global efforts and collaboration on access to justice:
As to efforts for realization of Goal 16.3 of SDGs, please see (d) below.
・Global forum: International Bar Association (IBA): Japanese members are also active in a global forum. In regard to the International Bar Association (IBA), Japan hosted its general conference in 2014. In recent years, the JFBA regularly hosts a session for “Access to Justice and Role of Bar Association” to discuss the latest issues regarding the subject and to share good practices on the issue.
・Legal assistance for access to justice at a global level: In 2016, through technical assistance by an expert of the Japan International Cooperation Agency (JICA), a call center to provide legal information was opened in the ministry of justice in Cote d’Ivoire (Ivory Coast), West Africa. It was modeled after the legal information service and the call center of JLSC. Within 2 years of its operation, approximately 3,000 clients were served by this minimum-sized call center with 2 operators.
In 2018, JICA started a training program focusing on access to justice for participants worldwide. Japan’s experiences in regard to access to justice were shared with participants from Cambodia, Cote d’Ivoire, East Timor, Indonesia, Kazakhstan, Laos, Malawi, Mali, Mongolia, Nepal, Uzbekistan, and Vietnam.
・International academic research and conferences: Japanese members have participated in international research projects including an access to justice project in Italy in the 1970’s, and have served as regular participants for international conferences on the subject such as the Conference of International Legal Aid Group.
C. Efforts and collaboration by non-governmental organizations on access to justice
As to the efforts made by the JFBA, please see (a) and (b) above.
・Support of legal assistance projects: Regarding legal assistance for Asian countries, non-profit private organizations often play a significant role in follow-up work of projects or in logistical matters associated with on-going projects.
D. Steps being taken to articulate and elaborate Sustainable Development Goal 16.3
In order to realize the Sustainable Development Goals in Japan, the government has set up a promotion headquarters in the cabinet and has published a set of concrete plans for realization of each of the goals. According to the plan, the following initiatives are listed for Goal 16, including Goal 16.3.
・promotion of protection of rights of handicapped persons;
・implementation of the 14th UN Congress on Crime Prevention and Criminal Justice (Kyoto Congress 2020) and follow-up on its political declaration;
・further enrichment of comprehensive legal support by implementing services at Japan Legal Support Center (JLSC);
・promotion of translation of Japanese laws and regulations into foreign languages;
・promotion of international assistance in the field of criminal justice through activities of United Nations Asia and Far East Institute for the Prevention of Crime and the Treatment of Offenders (UNAFEI); and
・promotion of assistance towards developing countries in the field of law and justice.
As an initiative of the private sector, the Japan Federation of Bar Associations (JFBA) is preparing a declaration on its role in realization of SDGs, including Goal 16.3.
Japan, like other East Asian countries, has witnessed an expansion trend in legal aid and access to justice policies in recent decades despite the economic crisis. Associated with this trend, Japan has expanded and improved access to justice. However, at the same time, Japan seems to be reluctant to advocate a European-style “welfare state policy”. With the existence of a strong repressive force that tries to limit welfare policies to a certain scope, legal aid is already pushed into an environment of stringent cost efficiency even though in a phase where legal aid needs to be greatly expanded. In short, the promotion of the legal aid system and its crisis situation are proceeding simultaneously.
On the other hand, the rise of judicial reform since the 1990s, along with globalisation and the expansion of wealth disparity and poverty, may contribute to the strengthening of legal aid and access to justice in the future, notwithstanding that the heat of the judicial reform movement gradually waned after the 2010s.
At any rate, Japan will intensify the legal aid and access to justice network in the future while paying constant attention to the trend of legal aid and access to justice in other countries.
 The authors of this report are particularly grateful to White & Case LLP (Tokyo Office) for their special contribution to the edition of the final English text.
 Population Estimates by Age and Sex – June 1, 2019. Available at: https://www.e-stat.go.jp/en/stat-search/files?page=1&layout=datalist&cycle=1&year=20190&month=24101211&toukei=00200524&tstat=000000090001&tclass1=000001011678&cycle_facet=cycle&result_back=1&stat_infid=000031878286
 Annual Report on the Ageing Society: 2018, Cabinet Office, Government of Japan. Available at: https://www8.cao.go.jp/kourei/english/annualreport/2018/2018pdf_e.html
 According to the WHO, the proportion of a society’s population that is comprised of persons age 65 or older is called the “aging rate”. If a society’s aging rate exceeds 7%, it is an “aging society”. If the rate surpasses 14%, it is an “aged society”; if over 21%, it is a “super-aged society”.
 Number of foreign residents by nationality/region and sex as of June 2019 (in Japanese). Available at: https://www.e-stat.go.jp/stat-search/file-download?statInfId=000031886380&fileKind=0
 Final Report of the former Advisory Council for Future Ainu Policy submitted to Chief Cabinet Secretary in July 2009. Available at: https://www.kantei.go.jp/jp/singi/ainu/dai10/siryou1_en.pdf
 Overview of Ainu Policy in Japan. Available at: https://www.kantei.go.jp/jp/singi/ainusuishin/index_e.html
 The act for the promotion of measures for creating a society where people who identify as Ainu can be proud of their roots (in Japanese). Available at: https://elaws.e-gov.go.jp/search/elawsSearch/elaws_search/lsg0500/detail?lawId=431AC0000000016
 National Accounts for 2017, Economic and Social Research Institute, Cabinet Office of Japan. Available at: https://www.esri.cao.go.jp/en/sna/data/kakuhou/files/2017/2017annual_report_e.html
 World Bank, International Comparison Program database. Available at: https://data.worldbank.org/indicator/NY.GNP.PCAP.PP.CD
 The Commitment to Reducing Inequality Index 2018. Available at: https://oxfamilibrary.openrepository.com/bitstream/handle/10546/620553/rr-commitment-reducing-inequality-index-2018-091018-en.pdf
 OECD (2019), Poverty rate (indicator). doi: 10.1787/0fe1315d-en (Accessed on 17 December 2019).
 Abridged Life Tables for Japan 2018 (in Japanese), Ministry of Health, Labour and Welfare. Available at: https://www.mhlw.go.jp/english/database/db-hw/lifetb17/dl/lifetb17-01.pdf
 Supreme Court of Japan, Court System of Japan, p. 12-13. Available at: http://www.courts.go.jp/english/judicial_sys/index.html
 Supreme Court of Japan, Outline of Criminal Justice in JAPAN 2019, p. 12-15. Available at: http://www.courts.go.jp/english/judicial_sys/index.html
 Ibid, p. 16.
 The Japan Federation of Bar Associations Brochure p. 20-22, p. 42. Available at: https://www.nichibenren.or.jp/en/about/publications.html
 Supreme Court of Japan, Outline of Civil Procedure of Japan p. 6. Available at: http://www.courts.go.jp/english/vcms_lf/Outline_of_Civil_Procedure_in_Japan_2017.pdf
 Supreme Court of Japan, supra note 19 p. 7.
 Supreme Court of Japan, Guide to the Family Court of Japan p. 20. Available at: http://www.courts.go.jp/english/vcms_lf/Guide_to_the_Family_Court_of_Japan2018.pdf
 Six lay judges will be chosen to serve alongside three professional judges in examining cases involving certain serious crimes. Lay judges will be involved in criminal proceedings, determine facts and decide sentences with an authority basically 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 assigned to serve on specific cases. It also resembles a lay judge (Schöffe or échevin) system in that citizens participate in trials alongside professional judges.
 The English translation of the Comprehensive Legal Support Act. Available at: http://www.japaneselawtranslation.go.jp/law/detail/?vm=04&re=01&id=1832
 Japan Federation of Bar Associations, The Japanese Juduical System and Judicial Reform. Available at: http://www.nichibenren.or.jp/en/about/judicial_system.html
 An English translation of the Comprehensive Legal Support Act is available at http://www.japaneselawtranslation.go.jp/law/detail_main?re=02&vm=04&id=3233.
 The Japan Federation of Bar Associations Brochure, p. 5-7. Available at: https://www.nichibenren.or.jp/en/about/publications.html
 Ibid., p. 7.
 Ibid., p. 24-25.
 Ibid., p. 23-24.
 The White Paper on Information and Communications (2018), Ministry of Internal Affairs and Communications, p. 156.
 Status of Broadband Infrastructure (as of the end of March 2018), Website of Ministry of Internal Affairs and Communications. Available at: https://www.soumu.go.jp/main_content/000371278.pdf
 The White Paper on Information and Communications (2019), Ministry of Internal Affairs and Communications, p. 252-253.
 See: https://www.refugee.or.jp/jar/legal.shtml
 See: https://www.refugee.or.jp/for_refugees/application.shtml
 See: https://www.refugee.or.jp/en/donation.shtml
 See: https://www.refugee.or.jp/for_refugees/
 Article 30, Paragraph1 of the Comprehensive Legal Support Act.
 The White Paper of Japan Legal Support Center (2018), p. 37.
 H. Genn (1999) Paths to Justice, Pascoe Pleasence, Causes of Action : Civil Law and Social Justice, The final report of the first LSRC survey of justiciable problems 2004 etc.