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Kakiuchi, S --- "Access to justice in Japan" [2007] JPLRes 1 (1 January 2007)

Access to justice in Japan

Assoc Prof Shusuke Kakiuchi
University of Tokyo, Faculty of Law

Reproduced (with permission of the author and publisher) from:
Toshio Yamaguchi & Ichiro Kitamura (eds) Japanese Reports for the XVIIth International Congress of Comparative Law (ICCPL Publications No 10, International Centre for Comparative Law and Politics, Tokyo, 2007) pp 113-46.

0. Historical background
Before going into details, it would be helpful to give a sketch of the historical background of the Japanese legal system which, in my opinion, still casts a long shadow on our current situation regarding access to Justice^[1]. The modern Japanese legal system saw two major reforms in the past. The first and the most important reform was the reception of the western legal system during the second half of the 19^th century; the second reform was the one after the Second World War which introduced some elements of the American judicial system. We are now witnessing a third major judicial reform that has been taking place since 2001.

0.1 Reception of the European legal system
Until the second half of the 19^th century, Japan had its own legal system which, though influenced strongly by Chinese law at its origin in the 8^th century, developed with minimal external influence up to the era of the Tokugawa Shogunate (1603-1868). The question of how far this traditional Japanese system was different from the European system is still a subject of debate. For the purpose of this report, however, it would be sufficient to note the following points. (i) One of the tasks of the new imperial government, which succeeded the Shogunate in 1868, was to achieve equal political footing with the western powers, especially by eliminating unequal clauses (e.g. clause of extraterritoriality) in treaties concluded by its predecessor. This task made it necessary for the Japanese government to persuade European diplomats that Japan had a legal system in conformity with the "principles received by Western Nations"^[2]. Thus, the major codes, civil and criminal, substantive and procedural, had to be drafted following some of the latest French or German example^[3]. (ii) Most legal technical terms and concepts now familiar to Japanese lawyers were products of this complete reception of the European legal system. Many new words were then created to translate legal concepts which had no equivalents in traditional Japanese language. (iii) Correspondingly, the conventional legal education system, if such had ever existed, was replaced by newly founded national and private universities whose professors were at first foreign scholars, and later some privileged Japanese educated at European universities. Therefore, put briefly, the legal system of Western countries was transplanted to modern Japan through a top-down, rather than a bottom-up process. This may explain some of the characteristics of Japanese legal system and its culture.

0.2 Reform after the Second World War
The Japanese legal system, thus founded, became a composite of mainly French and German legal elements, but soon after codification begun, the influence of German legal dogmatics became dominant. This trend changed when the U.S. occupation authorities introduced some American legal elements to the Japanese legal system after the Second World War. Especially, the former administrative court was abolished and the judicial system was simplified – Japan has ever since had only one ordinary jurisdiction^[4]. Under this single ordinary jurisdiction belong 1 Supreme Court with the power of constitutional review, 8 high courts (with 6 branch offices), 50 district courts (with 203 branch offices), 50 family courts (with 203 branch offices and 77 local offices) and 438 summary courts. As to procedural law, new Code of Criminal Procedure was drafted under some American influence. However, with the exception of family law, most parts of the legal system, including the civil procedure and most of substantive law remained essentially untouched. It is also worth mentioning that the new Constitution guaranteed explicitly the right of access to the courts^[5].

0.3 The latest reform of the judicial system

0.3.1 Reform of civil procedure
The law of civil procedure had been essentially untouched since a brief reform in 1926. However, especially since the end of the 1970s', complaints against the complicated and time-consuming procedure grew. After many voluntary trials of improvement in court practice, the new Code of Civil Procedure was enacted in 1996. The main purpose of this reform was to provide a more user-friendly civil procedure and thus to give an easier access to the civil justice^[6]. Among diverse renewals brought by the new Code, the introduction of the institution of action on small claim as a special procedure in summary courts deserves special attention.

0.3.2 Judicial reform since 2001
This reform of civil procedure was, however, only the beginning of a more comprehensive reform of the whole judicial system^[7].

As a result of the long depression which began in the early 1990s', the so-called “de-regulation” in the Japanese socio-economic system became an important topic in Japan. The idea was to revitalize the society by eliminating excessive prior administrative regulation, and instead encourage the judiciary to become the vehicle of necessary posterior intervention in order to maintain systemic integrity. This political context urged the government to form a special commission for the reform of the justice system in 1999 (Shihô Seido Kaikaku Shingi Kai: Justice System Reform Council), which submitted its recommendations in 2001^[8]. The report identified the following as the main topics of reform: (a) reform of the civil justice system, (b) reform of the criminal justice system, (c) responses to internationalization, (d) reform of the legal profession and legal training system, and (e) cultivation of popular support for the justice system. Various proposals to attain these objectives were also made: reinforcement and speeding up of civil justice, reinforcement of family courts and summary courts, expansion of access to the courts, reinforcement and vitalization of ADR, improvement and speeding up of criminal trials, introduction of new popular participation system in criminal proceedings, expansion of the legal profession, etc. The report’s specific recommendations concerning the expansion of access to the courts includes, among other things, reduction of filing fees, imposition of certain responsibility to the losing party for lawyer fees, enlargement of the availability of litigation cost insurance and reinforcement of civil legal aid system.

In response to this program outlined by the report, several laws were enacted in rapid succession^[9]. Concerning access to justice, enactment of the Law on Comprehensive Legal Support^[10] and the Law Concerning Speeding Up of Court Procedure^[11] is worth mentioning. However, the bill introducing limited responsibility of the loosing party for lawyer fees was abandoned^[12].

1. Sociological background.

a)	Please describe if access to justice is a social issue in your system. Do newspapers deal with it? Do TV shows? Is it an issue in political campaigns? Is there a different platform for different parties in this matter?

As described above, the expansion of access to the courts was one of the main topics in the recent judicial reform, which was simultaneously a part of a more comprehensive reform process carried out by the Koizumi Cabinet. Although the judicial reform was not always a first priority among other issues of reform, it aroused some public interest and thus produced some response from mass media^[13].

This recent movement consists of at least two different streams of ideas. The first and rather recent current, which was the prime mover of the reform, is the pressure from the business sector demanding a more efficient judiciary amenable to their economic activities. This current of thought is apparent in most of effectiveness-oriented topics of reform such as speeding up of civil procedure especially in patent cases. The second and rather traditional current is the need for expansion to popularize the justice system. Some reform issues such as expansion of legal aid and popular participation to criminal proceedings can be explained in this context. The case of the losing party's responsibility over lawyer fees might be understood as a result of conflict between the two strands of thought.

b)	Is there a stigma in suing in your society? Is there a stigma in being sued? Does the principle that someone is innocent until proven guilty shelter the criminal defendant from the social stigma of prosecution?

b-1) Stigma in suing
It is a well-known fact that the litigation rate in Japan remains considerably lower than other developed countries^[14]. The traditional explanation found its basis on the so-called non-litigious character or mentality of the Japanese people^[15]. If such a mentality did exist, it should also appear as a negative reaction to the act of suing. Although quantitatively undeterminable, there are some cases that suggest the existence of a stigma in suing.

A conspicuous example of such a negative reaction to suing was seen in a well-known case called “neighborhood litigation case (Rinjin Soshô)” of 1983. The plaintiffs, who sued their neighbors for an accidental death of their three-year-old son^[16], had to abandon the first instant court judgment in their favor due to harsh denunciation by way of numerous anonymous phone calls and letters. Public disapproval of the idea of suing one’s neighbor and demanding reparation was caused by some headlines of major newspapers^[17] and TV news shows that criticized the judgment. Furthermore, the father lost his job due to extensive social pressure, and eventually the plaintiff family had to move out from their original resident. This incident suggested the existence of a strong stigma in suing.

Although it remains unclear whether such a stigma is widely seen or peculiar to some limited types of cases such as this^[18], many Japanese thought that such a stigma reflected the traditional mentality of the Japanese people. This mentality, if it indeed existed, was also held among the more conservative politicians and leading lawyers at least until a few decades after the Second World War. This explains the existence of a highly-developed court-annexed conciliation system in Japan (chôtei) which was founded for the first time by the Land Lease and House Lease Conciliation Law in 1922 and completed by the Law for Adjudgment of Family Matter^[19] in 1947 and the Civil Matter Conciliation Law^[20] in 1951. A symbolic expression of this “tendency to regard lawsuits as a kind of vice^[21]” can be clearly found in 47 Haiku-form-mottos for parties in conciliation proceedings composed in 1953 to promote the use of these proceedings and posted in court waiting rooms across the nation^[22].

On the other hand, there is no direct statistical data showing that such a stigma prevents claimants to sue. An empirical research made by the Justice System Reform Council in 2000^[23] showed that 46.2% of parties felt reluctance to use civil procedure. However, among the top reasons for this reluctance were the time (72.0%) and the cost (67.2%) required to go through a case. By contrast, cultural reasons, such as negative influences on one’s social appearance (19.9%) and fear of exposure to the public (18.0%), ranked low. This result may not suggest that most Japanese citizens are indifferent to the stigma in suing because the respondents were limited to those who had used civil procedure in the past, but it does suggest that the time and cost of litigation may have substantial influence on litigants' behavior.

b-2) Stigma in being sued
It is commonly assumed that defendants feel quite insulted when they are sued. One reason which may account for such a sentiment is that the defendant in civil matter (Hikoku^[24]) and the accused in criminal matter (Hikoku-nin^[25]) are often confused by people without legal education. This confusion is quite common in the mass media as well, which uses always Hikoku regardless of civil or criminal. Thus, a defendant who receives the plaintiff's complaint served by the court and finds his/her name indicated as “Hikoku“ might believe that he/she is accused in a criminal proceeding. In addition, Japanese criminal practice gives broad discretion to the prosecutor to decide whether or not to prosecute, and more than 99% of the cases^[26] that are brought to the court by the prosecutor result in conviction. Under such circumstance, for an individual to be called “Hikoku” is nearly equivalent to being convicted, and causes among others strong antipathy toward the plaintiff.

c)	Do you have data showing what percentage of people sue or is sued in your society?

I have no data showing directly what percentage of people sue or sued in Japan. However, the number of cases docketed in comparison with the population may give some light on the question.

c-1) Civil Cases per Population

This table shows that in 2004, some 4 cases occurred for every 1,000 Japanese citizens. Assuming that each case has one plaintiff and one defendant^[29], 8 persons for every 1,000 people are either suing or being sued. Since some of the parties to the cases were corporations, the number of individuals who sue or are being sued is likely to be even less.

c-2) Conciliation and dunning proceedings
As noted in b-1, court-annexed conciliation proceeding plays an important role in Japan. Additionally, dunning proceeding (Tokusoku Tetsuzuki) – a summary procedure through which the court clerk issues a demand for payment of money or delivery of other fungible things – plays an important part in Japanese civil proceedings (Art. 382, Code of Civil Procedure). The table below shows the result given by the addition of these two categories.

d)	Is there a “litigation explosion” issue in your system? Is the state of civil and/or criminal justice considered efficient? Is there an issue of delays in justice? Can you quantify the delay?

Although the tables above show a certain increase of litigation in Japan, it is far from being called an "explosion". However, this does not mean that there is no complaint about the efficiency of civil and criminal justice procedures in Japan. As mentioned earlier, complaints regarding efficiency formed the main motive of the recent judicial reform. One set of data shows that 22.3% of parties who underwent civil litigation found the procedure “too long” and 13.6% “rather long”, whereas 28.4% answered the time was “reasonable”^[32]. In particular, the length of time it took for some criminal cases that were once subjected to sensational reporting by the mass media compels one to strongly presume unwarranted delay in criminal justice because several years had to pass before reaching final judgments. However, these instances do not necessarily reflect the average time required in typical civil or criminal cases.

d-1) Delay in civil justice
The delay of civil proceedings was the worst in 1975, when the average duration reached 16.2 months. The table below shows the recent improvement in shortening the delay.

Average Duration of Formal Trial Proceedings (District Courts)(Months)^[33]

This table shows that, though the average duration is becoming shorter, cases in which one or more witnesses are summoned, which means that they are contested by defendants, still require substantially longer time. Cases requiring technical knowledge show similar tendencies.

d-2) Delay in criminal justice
The trend in criminal justice goes in parallel with civil justice. The duration of criminal proceedings reached its peak (6.7 months) in 1975, and since the beginning of the 80s' remains in the range of 3 to 4 months.

Average Duration of Formal Trial Proceedings (District Courts)(Months)^[35]

2. Costs of justice.

a) Please describe the structure of legal fees in your system. Is contingency fee available? Is advertising of legal services available? Is there a winner-pays-all system? Are there discretionary limits to the winner-pays-all system? Are advances usually required by attorneys?

In Japan, there is no rule prohibiting legal fees based solely on the obtained result^[37]. In fact, the typical scheme for fees to attorneys in Japan is a combination of fixed and contingent fee. Usually, at the initial stage, attorneys charge about 2% (for the largest cases) to 8% (for the smallest cases) of the amount in controversy. This retainer is not refundable regardless of the result of the case. Then, at a later stage, they charge a contingent fee of 4% to 16% of the amount they recovered or defended. Time charge is not common except for quite few major law firms.

As for the recovery of attorney's fees by the winning party, the American rule applies for most cases^[38]. The main exception is tort cases in which the winning plaintiff can recover attorney's fees as part of damage caused by the defendant^[39]. As noted in 0.3.2, the recent attempt to introduce a limited version of the English rule failed in 2004.

b) Are fees regulated in your system? Can attorneys contractually go beyond the maximum? Below the minimum?

Up to 2004, there was a model schedule of charges provided by the Japan Federation of Bar Associations (JFBA)^[40]. However, pressed by a strong demand for de-regulation, this schedule was abolished in 2004^[41], and there is no longer regulation of any kind fixing the maximum or the minimum of legal fees.

Instead, JFBA published a brochure about legal fees for litigants' reference in 2003^[42]. This brochure is based on a questionnaire survey about typical amount of fees that attorneys require for 28 model cases. Now a litigant can find out what percentage of attorneys charge how much for each kind of model case.

c) Please try to quantify the costs of litigation. Use whatever method you prefer to give the sense of how expensive it is to litigate in your system e.g. comparing the cost of attorneys to that of other professionals (doctors, accountants, notaries etc).

The JFBA brochure on legal fees, mentioned above, is helpful to answer this question and the next one.

According to the brochure, 61% of attorneys replied that they require 10,000 yen for a one-hour legal counseling^[43]. If they need to take further actions, the fees increase in proportion to the magnitude and the difficulty of the controversy.

How do litigants judge the costs of litigation? The result of a questionnaire survey in 2000 was as follows^[44]:

As the table shows, the most frequent answer was “Neither expensive nor cheap”, but “Very” or “Rather” expensive (33.2% altogether) was substantially higher than “Very” and “Rather” cheap (7.3%). However, this survey does not show the actual amounts that the litigants paid for their lawsuits, and only show that they felt the costs were either expensive or cheap.

In this respect, another tentative survey indicates some interesting results^[45]. This scenario study was based on a model case with 4 alternative actions:

The Case: “Your TV, which you bought for 300,000 yen^[46] 6 months ago, doesn't work any more. The shop and the manufacturer are neglecting your requests either for a repair or a replacement, although the guarantee has not yet expired.”

Alternative 1: “You cancel your purchase and bring a small claim action^[47] to summary court for a refund equivalent to the original price. You pay 3,000 yen as filing fee for the claim of 300,000 yen^[48].”

Alternative 2: “You cancel your purchase and request a refund equivalent to the original price. When the shop and the manufacturer refused to make the refund, you bring your case to the civil matter conciliation procedure in summary court. You pay 1,800 yen as filing fee.”

Alternative 3: “You cancel your purchase and request a refund equivalent to the original price. When the shop and the manufacturer refuse to make the refund, you bring your case to the Dispute Resolution Centre of the Bar Association. You pay 10,000 yen^[49] as filing fee.”

Alternative 4: “You call an attorney whom you find listed in a phone directory. The attorney suggests that you come to his/her office for legal advices and tells you that it costs 5,000 yen for 30 minutes^[50].”

The answers were analyzed in 5 scales: 1. cheap, 2. rather cheap, 3. neither cheap nor expensive, 4. rather expensive, and 5. expensive. The average was 2.52 for Alternative 1, 2.45 for Alternative 2, 3.01 for Alternative 3, 3.76 for Alternative 4. Among these alternatives, the small claim procedure and conciliation were considered cheap, and legal advice by attorney was considered expensive.

This study analyzes further the attitude of the respondents toward the total costs of the litigation using following additional variations^[51].

Variation 1a: “A hearing for your small claim case was held one month later and the judge proposed a settlement that the defendants repair your TV free of charge. You agreed to the proposed settlement. To prepare for this lawsuit, you had to copy some documents, buy some books about small claim procedure and get a half-day off from your work. All these add up to 10,000 yen. You paid a total sum of 13,000 yen, including the 3,000 yen filing fee”.

Variation 2a (conciliation): “ ... You paid 11,800 yen altogether.”

Variation 3a (Dispute Resolution Centre): “... You paid 26,000 yen altogether”.

Variation 4a (Legal advice): “... You paid 10,000 yen altogether”.

The answers by respondents were given in the same 5 scales. The average for each variation was 3.10, 3.12, 3.33 and 3.79, respectively. This result suggests that users found the cost of small claim procedure and conciliation procedure reasonable, whereas the dispute resolution service of bar association and legal advices by attorney were deemed rather expensive.

d) How much a very simple law-suit costs for a plaintiff? How much a non contested car accident? How much a non contested divorce? How much to evict a tenant? How much to sue a manufacturer for a non working dishwasher?

It is quite unlikely that a non-contested car accident or divorce would cause a lawsuit in Japan. As for the case of a non-working dishwasher, see the amounts given in Prof. Ôta's survey referred above in section c).

For further information, some model cases in the aforementioned JFBA pamphlet show how much an attorney requires for a simple lawsuit.

(i) You lent 3,000,000 yen to an acquaintance. When this individual refused to pay back, you went to an attorney. You won the lawsuit and recovered the amount without any formal execution procedure.
In this case, the most frequent answers by attorneys were that they would require 200,000 yen as retaining fee (41.3% of the answers) and an additional 300,000 yen as contingent fee (53.4% of the answers)^[52].

(ii) You were injured in a car accident and wanted to recover your damages. Your attorney estimated your damages to be approximately 10,000,000 yen and filed a lawsuit. You won and recovered the full amount.
In this case, the most frequently required amount of retaining fee is 300,000 yen (33.7%)^[53] and the contingent fee 1,000,000 yen (51.1%)^[54].

(iii) You suffered domestic violence and wished a divorce. Your attorney filed a divorce conciliation procedure and you divorced successfully.

Expected retaining fee and contingent fee were 200,000 yen (47.7%) and 300,000 yen (39.3%)^[55], respectively.

(iv) In the same case as (iii), your attorney filed a lawsuit for divorce which ended successfully.
Expected retaining fee and contingent fee were 300,000 yen (52.7%) and 300,000 yen (42.0%)^[56], respectively.

e) How much just the fact of being sued is a burden to defendant? Are there insurance schemes available? Are they commonly used? How expensive are they if compared, for example, to basic car accident insurance?

Currently, insurance for litigation costs (attorneys' fees) are only available as additional coverage to an automobile insurance and certain kinds of property insurance^[57]. The premium is normally quite reasonable, say, 3,000 yen per year. Justice System Reform Council is recommending its further development and wider availability^[58]. However, this scheme is planned exclusively for the case in which the insured seeks the recovery of his/her damages as the plaintiff. In other words, it cannot reduce the burden of the defendants in any case.

The survey in 2000 reports that, in fact, only 46.5% of individual defendants in civil matter were represented by an attorney, while 87.6% of individual plaintiffs and 80.7% of all corporate parties were able to obtain legal representation^[59]. The top reasons given by individual defendants without legal representation were that (i) it is too expensive (50.6%), and (ii) the matter was not important enough to resort to an attorney (42.7%). By contrast, only 12.4% of these defendants replied that they could not find an appropriate attorney^[60]. This result suggests that indeed the question of costs plays an important role in defendants' decision on whether or not to resort to an attorney.

f) Is pro-bono legal practice used in your system? Is it encouraged by tax deduction schemes? Are there public interest law firms? How are these firms funded? Are trade unions involved in offering subsidized legal services to their members? Do law schools offer legal clinics open to the public? Are consumers groups, environmental groups and other organizations providing legal services? Are religious groups, churches or organizations involved in offering subsidized legal services?

f-1) Pro-bono legal practice and public interest law firms
Pro-bono legal practice is one of developing sections in recent Japanese legal services. According to the Justice System Reform Council, the activities for the public interest including so-called "pro-bono activities" "should be deemed to be one of the lawyers' duties ... Lawyers should secure transparency of such activities and achieve accountability to the public"^[61]. Prior to this recommendation, some local bar associations had already obliged its members to engage in certain activities for the public interest^[62]. Typically, members should engage in activities listed by such rules (e.g. activity as court-appointed defense counsel in criminal trial at least once a year or 30 hours of other pro-bono activities etc).

As for the public interest law firms, the initiative of the JFBA has played an important role. In 1999, the JFBA established a fund to support public interest law firms. Its aim was principally to resolve the problem of insufficiency of lawyers in rural areas^[63]. This “Himawari (Sunflower) Fund”^[64] is financed by obligatory monthly contributions^[65] of all JFBA members. The first public interest law firm supported by this fund was established in 2000. There are currently (as of April 2006) 62 Himawari Fund law firms. The attorney establishing such a law firm can receive a maximum of 5,000,000 yen as initial cost support and annually a maximum of 10,000,000 yen (exceptionally 12,000,000 yen) of running cost^[66] support from the Fund under certain conditions. However, since these special monthly funding are provided on a temporary basis (currently planned to run until March 2007), future Himawari firms somewhat lack prospect.

On the other hand, Law on Comprehensive Legal Support enacted in 2004 is worth mentioning here. The aim of this law is to provide appropriate legal information and services throughout the nation (art. 2 of the Law). To that end, the Japan Center for Judicial Support (Nihon Shihô Shien Center) was newly established as the principal vehicle of the whole support programs provided by this law^[67]. The mission of this center, which is nicknamed “Hô Terasu”^[68], is to provide “comprehensive legal support”, including necessary measures for areas that lack sufficient number of practicing attorneys. Thus, if necessary, the Center is expected to establish public law firms in cooperation with the above mentioned Himawari firms.

f-2) Legal services by other organizations
There are various legal services provided as ADR services by private organizations.
For example, there is the Japan Center for Settlement of Traffic Accident Disputes (Nihon Kôtsû Jiko Funsô Shori Center) (founded in 1974), and there are also various product liability centers that were founded after the enactment of the Product Liability Law in 1996: the PL Center for Consumer Products^[69] (Shôhi Seikatsu Yôhin PL Center), the Electric Appliances PL Center (Kaden Seihin PL Center), etc. Additionally, ADR centers of some local bar associations play a certain role^[70].

Some trade unions and consumer groups provide consulting service by telephone^[71]. The role played by religious organizations in this regard, as in Japanese social life in general, seems to be insignificant.

Law schools are one of the major products of the recent reform of legal education. Japanese law schools combine the traditional continental type legal education at law faculties of universities (undergraduate level) with American type professional school training at the graduate level^[72]. Some law schools that were established after 2004 provide legal clinics open to the public^[73]. How these activities will develop, however, remains to be seen.

It should also to be noted that in Japan, legal service provided by certain governmental organizations play quite an important role. For example, apart from the above mentioned court-annexed conciliation proceedings, there are the Environmental Dispute Coordination Commission (Kôgai tô Chôsei Iinkai)^[74], Central Labor Relations Commission (Chûô Rôdô Iinkai)^[75], National Consumer Center of Japan (Kokumin Seikatsu Center)^[76]. Local governments are also involved in dispute resolution services^[77].

g) Where does someone of the lower or lower-middle class who is sued goes as a first reaction to get advise?

There is no data available to answer directly to this question. There is, however, an interesting questionnaire survey which might shed light upon the reaction of the people who are sued.

Two questions addressed by the survey, conducted by a group led by Professor Katô in 2000^[78], are relevant to this matter.

g-1) Who would be able to help, if a legal matter arose?
One of the two questions was as follows: "Suppose that you had a friend called X. If a legal matter arose, do you think that X would be able to (1) help a great deal, (2) help somewhat, (3) help only a little, (4) not help at all, or (5) would you not be able to say one way or the other, given that X was (a) a member of Congress, (b) an influential local person, (c) a lawyer, (d) a judge, (e) a prosecutor, (f) a law professor, (g) an employee of a local public office, (h) a police officer or (i) a person involved with organized crime^[79].” The table below shows the average of the answers^[80].

Quite naturally, members of the legal profession in the narrow sense (c, d, e and f) gained more positive reactions (under 3) over others. However, whether lower class people have in fact access to these lawyers is, of course, another question. It is likely that they would resort first to the public or private services referred to as (f) above.

g-2) Desirability of the reaction
The other question relates to the desirability of the reaction of a litigant. The question is based on two hypothetical situations.

Case (A): A person loaned a friend an amount equivalent to one month's pay, but the friend has not yet repaid even after the repayment deadline had expired.

Case (B): A person purchased an electronic appliance that cost him/her one month’s pay at a store, but since the product was defective; the purchaser demanded that the store replace the defective product with a new one, but met with the store’s refusal. The purchaser then sought to cancel the purchase and demanded the store to make a refund at the purchase price, but the store refused again.

The question was “Do you think that it is (1) very desirable, (2) somewhat desirable, (3) neither, (4) somewhat undesirable or (5) very undesirable, if the lender/purchaser (a) gives up and does not take any special steps, (b) consults an influential mutual acquaintance, (c) consults a legal professional, (d) seeks to resolve the matter through mediation^[81] and (e) files suit in court. Tables below show the results for these two cases.



Case (A)^[82]

Case (B)^[83]

A similar pattern emerged in both cases. Two salient characteristics were that the option of giving up was considered negative, and consulting a legal professional was considered positive in both of the model cases. Interestingly, the option "suing in court" was deemed rather negative in case (A) but clearly positive in case (B). But again, whether a litigant of the lower class can in fact be able to take an action that he/she considers positive is another question.

h) Can someone who is prosecuted and turns out to be innocent recover his costs, fees, expenses? Can he/she sue to be compensated for his/her losses?

Article 40 of the Constitution provides that "Any person, in case he is acquitted after he has been arrested or detained, may sue the State for redress as provided by law". On the other hand, article 17 of the Constitution provides that "Every person may sue for redress as provided by law from the State or a public entity, in case he has suffered damage through illegal act of any public official". According to the common understanding, the former article is the general rule for the compensation for damages regardless of whether it was caused by negligence or not. Compensation in this sense is ruled by the Act on Compensation in Criminal Matter^[84] which provides fixed scale of compensation with certain discretionary range for each type of damage. Article 17 of the Constitution, which was put into effect by Act on Compensation for State Action^[85], covers damages caused by intentional or negligent action by public officials.

As for expenses for trial, article 188-2 of the Code of Criminal Procedure guarantees compensation.

3. Institutions

a) What percentage of the GDP is used for justice in your system? Has it increased or decreased in the last twenty years?

The table below shows the proportion of expenditure on judiciary to the GDP (nominal terms) and to the whole national budget.

The figures in the two columns to the right show that the ratios of expenditure on judiciary to GDP and the national budget tended to decrease until 2000, and have scarcely increased thereafter. The slight increase is probably consequent to the recent judicial reform.

b) How much does initiating litigation in a standard general jurisdiction cost? How much does it cost for each step in litigation when using a court of general jurisdiction? Is it subsidized or is it paid by the users? Is it more or less expensive in terms of costs than going to a public hospital for a general check up?

Plaintiff must pay a certain filing fee to bring his action to the court (article 3, Civil Procedure Costs Act). The amount of the fee is calculated according to the amount in controversy (Table 1 of the said Law). For example, if the amount in controversy is 1,000,000 yen, the filing fee is 10,000 yen; if the amount is 10,000,000 yen, then the filing fee is 50,000 yen. As mentioned above at 2a, if the plaintiff was to win the lawsuit, he will be compensated for the filing fee that would be counted as part of the litigation costs he had paid (article 61, Code of Civil Procedure).

Since the filing fee changes depending on the amount in controversy, it is difficult to say whether it is more or less expensive compared to costs of general medical check up in a public hospital which generally ranges from 40,000 yen to 50,000 yen.

c) Are small claims court available in your system? How much does it cost to litigate there? Are attorneys required in front of them? If not required do you have data on the percentage of individuals using them anyway? Who staffs small claims courts?

Summary courts – established by the reform after the Second World War – were originally intended to be small claims courts distinct from district courts, the ordinary courts of the first instance. The procedure at summary courts was originally planned to be somewhat simpler than those of district courts, but in fact, it has been criticized that it was not so simple. Thus, summary courts have been said to be mere second class district courts.

The new Code of Civil Procedure of 1996, mentioned above at 0.3.1, introduced Action on Small Claim (Shôgaku Soshô, article 368 ff. of the said Code) which equipped summary courts with a special procedure for small claims. This procedure is available for claims involving amounts up to 300,000 yen originally and 600,000 yen since 2004. This procedure stipulates that the trial be concluded on the first day set for oral argument (article 370 of the Code) and excludes appeal to district court (Kôso, which corresponds to German Berufung), allowing an objection (Igi, German Einspruch) only against its final judgment (article 377). The defendant, before proceeding with argument on the first date set for oral argument, may refuse this procedure, in which case the litigation shall be transferred to ordinary proceeding (article 373).

Although this procedure does not preclude legal representation, it is designed for parties without attorneys. Indeed, very few parties are represented by attorneys. In 2003, 92.6% of the cases handled under this procedure proceeded without any attorneys^[88].

The qualification for judges of summary courts is somewhat different from judges of other courts. They are not required to be formally certified by State Judicial Examination (Shihô Shiken); nevertheless, they are required to have sufficient legal knowledge and experience (article 44 and 45, Court Organization Law^[89]). Unlike other courts, summary courts do not have collegiate panels, but they may have one or more judicial commissioners (Shihô Iin) – lay persons designated by district courts – to attend the trial and render an opinion on the case (article 279, Code of Civil Procedure). In 2003, 61.9% of small claim action cases were assisted by such judicial commissioners^[90].

d) What percentage of decisions is appealed? What percentage of filed civil cases is settled?

d-1) Rate of appeal
The table below shows the rate of appeal for the last thirty years.

This table shows that though the rate of appeal has been stable at 20%, the rate of success has tended to increase during the last 10 years. It remains to be seen whether or not this tendency is related to the effort to accelerate proceedings in courts of the first instance.

d-2) Rate of cases settled^[95]

This table shows an interesting trend that both the rate of judgments and that of settlements have increased during the last thirty years. The increase in these two categories is offset by the decrease in the number of withdrawals. If it is assumed that the court plays a smaller part in the process of withdrawal than in the process of compromise^[96], then this data would be suggesting that the control of the court over the outcome of a lawsuit has been strengthened during the last thirty years.

e) Are ADR schemes diffused in your system? Are they voluntary, semi-voluntary or mandatory? Do attorneys participate in mediation procedures? Do other professionals? What is their training?

As already mentioned above at 2 (f-2), a variety of ADR schemes are available in Japan. Since the concept of “ADR” is quite diverse, characteristics of these schemes differ substantially from one institution to another.

The court-annexed conciliation procedure in family matter (Kaji Chôtei) is a prerequisite to a lawsuit (article 18, Law for Adjudgment of Family Matter), and thus, mandatory. Another type of court-annexed conciliation procedure, conciliation in civil matter (Minji Chôtei), is not a prerequisite, but can be ordered by the trial court. However, once the pre-trial proceedings for arrangement of issue and evidence (Sôten oyobi Shôko no Seiri) has been concluded, each party to the lawsuit has the right to refuse this order (article 20, Civil Matter Conciliation Law). In these court-annexed conciliation proceedings, the parties are required to appear in person and representation by attorneys is allowed only in exceptional cases with unavoidable circumstances (article 5, Rule for Adjudgment of Family Matter^[97]; article 8, Rule for Conciliation in Civil Matter^[98]). The panel of conciliators is composed of three kinds of members: (i) lawyers with qualification of an attorney, (ii) experts with knowledge contributive to resolution of disputes in civil or family matter, and (iii) other lay persons with sufficient experience in social life in general (article 1, Rule on Conciliators in Civil and Family Matter^[99]). Experts such as licensed real estate appraisers and licensed architects take part as conciliators particularly in cases involving defective construction etc.

Some ADR services provided by private organizations are of semi-mandatory character. For instance, the Japan Center for Settlement of Traffic Accident Disputes^[100] provides a procedure before its judging committee as the final stage of its ADR services. The award rendered by this committee does not bind the victim of the accident, but it does bind the other party which is usually an insurance company^[101].

As mentioned at 0.3.2, promotion of ADR was one of the topics recommended by the JSRC. According to its report, although “various types of ADR are available in Japan”, “[i]n reality ... with the exception of some organizations, these mechanisms are not fully functioning”. Thus, “[i]n addition to making special efforts to improve the function of adjudication, ... efforts to reinforce and vitalize ADR should be made so that it will become an equally attractive option to adjudication for the people”^[102]. As response to this recommendation, Law for Promotion of Alternative Dispute Resolution was enacted in 2004^[103]. This law introduces a new scheme of certification for ADR organizations and provides some privilege to certified organizations, such as effect of interruption of the prescription, which is otherwise limited to the filing of formal lawsuits (article 25 of the Law). It is to be noted that this certification requires the organization to be staffed with appropriate experts for the matter it receives (article 6, No. 1 and 2).

f) Are ADR clauses included in standard contracts with banks, insurance companies, utilities providers etc.? When such clauses are included in standard contracts can consumers sue anyway?

Clauses of "sincere deliberation" in case of dispute are sometimes found in contract practice^[104], but other ADR clauses are seemingly almost unknown. Unless the parties agree explicitly to abandon their right to bring a lawsuit, a simple ADR clause cannot prevent them from suing^[105].

g) Is arbitration used for more important civil cases in your system? Is it used also for average cases? How much it costs to initiate an arbitration procedure in a Chamber of Commerce? Is an arbitration procedure significantly shorter than an ordinary procedure?

Unlike conciliation or mediation, the role of arbitration was traditionally quite insignificant in Japan. Even though there are major permanent arbitral institutions such as the Japan Commercial Arbitration Association (Nihon Shôji Chûsai Kyôkai: JCAA) and the Japan Shipping Exchange (Kaiun Shûkai-jo: JSE), they receive only 10 to 20 filings for arbitration annually. For disputes concerning construction work, there is the Committee for Examination of Construction Work Disputes (Kenchiku Kôji Funfô Shinsa-kai) established by Construction Business Act administered by the Ministry of Land, Infrastructure and Transport. The number of filings for arbitration to this institution is less than one hundred every year^[106].

As for average civil cases, there are some arbitration centers of local bar associations such as the Arbitration Center of Daini Tokyo Bar Association mentioned above at 2 (f-2). However, the activities of these centers consist mainly of mediation and not of arbitration. Thus, while these centers received 960 filings and resolved 438 cases in 2004, only 9 cases were terminated by arbitration award^[107].

Reform of the arbitration scheme in Japan was also one of the topics recommended by the Justice System Reform Council^[108]. It is expected that the enactment of the new Arbitration Law in 2003 would vitalize the use of arbitration.

h) Are there other informal mechanisms by which dispute are settled? Is there a role for extended family networks? For churches? For political parties?

Most disputes are settled through negotiation between parties^[109]. If they deem necessary, parties to a dispute may resort to lawyers (see above 2 (g)). Various legal consultations and ADR services may help them to settle. However, family networks are not likely to play an important part in dispute resolution processes. Neither religious organizations nor political parties are likely to play significant roles (see 2 (f) and (g) above. Assessments regarding the helpfulness of “members of Congress” and “influential local person” were scarcely negative).

4. Structure of procedure

a) Who is the main fact-finder in your system? Is it the judge? Is it the attorney?

The principle of party presentation – which originated in Germany (Verhandlungsmaxime or –grundsatz) – applies in Japanese civil procedure, and therefore, fact-finding is under the control of parties; consequently the judge must rely only on facts presented by one of the parties. Still, according to the common understanding, the judge is the main fact-finder in the German system which lacks American-type rules of discovery, cross examination of witnesses and use of experts as judge's aides rather than partisan witnesses.

Japanese civil procedure is somewhere in between the American and the German system. Japanese civil procedure does not realize discovery between parties, but recently, by the reform of 1996, a new possibility of fact-gathering by the parties was introduced as a moderate form of discovery rule (Inquiry by party (Tôjisha Shôkai), article 163, Code of Civil Procedure)^[110]. While the position of experts is clearly distinct from that of lay witnesses, the method of cross examination applies to the latter. On the other hand, the active initiative of the judge throughout the formation of issues, especially in cases in which one of the parties is not represented by an attorney, is a common feature of Japanese civil procedure.

Thus, the answer is that the fact-finding function is shared by the judge and the attorney (or the party himself, when not represented) in Japan.

b) What are the rights of victims in the criminal process? Is criminal litigation used as a substitute for civil litigation?

Until recently, the criminal procedure was entirely a business between the state prosecutor and the accused and no specific right was legally acknowledged to the victims of crimes. After certain steps taken by relevant government authorities and the legislation^[111], the Basic Act for Victims of Crime^[112] was enacted in 2004. This Law declares the principle that all the victims of crime shall have the right to receive an appropriate treatment in view of individual dignity (article 3) and lists certain measures to be taken by the concerned authorities, such as to provide information^[113] about the criminal proceedings in progress so that victims can appropriately take part in the procedure (article 18). Directed by this Law, the government adopted the Basic Program for Victims of Crime^[114] in December 2005, and specified measures that should be taken. However, there is yet no consensus on how far their right to take part in the procedure should be guaranteed, and therefore, this issue was referred to in the Program as a subject for further consideration^[115].

Thus, currently, the rights of victims in the procedure are quite limited. Regarding participation to the procedure, they are only allowed to state their opinion in trial (article 292-2, Code of Criminal Procedure^[116]) and entitled to priority seating in the court gallery (article 2, Law Concerning Incidental Measures for Protection of Victims of Crime^[117]). In addition, they may make a request for perusal or copy of the record of the case (article 3 of the said Law).

As for the recovery of damages from the accused, the victims must bring a civil action regardless of any criminal procedure in progress. They may only present the record of the criminal procedure as documentary evidence in civil lawsuit. The only exception, introduced in 2000, is that if they reach a settlement with the accused, they may bring their settlement to the criminal court to be recorded. Thus recorded civil settlement has the same effect as a compromise in court and becomes enforceable in the same way as a final civil judgment (article 4, Law Concerning Incidental Measures for Protection of Victims of Crime). In such a case, the victims can dispense with civil lawsuit.

c) Can victims prosecute crimes?

Currently, victims have no right to prosecute crimes. As pointed out above at (b), they lack any meaningful position in the criminal procedure; they serve only as a source of information about the crime.

d) Can Court’s fees be waived based on low income? In the affirmative, how low?

Article 82 of the Code of Civil Procedure provides that the court may grant aid in litigation (Soshô Kyûjo) for a person who does not possess the means to pay the cost necessary for preparation and conduct of a suit, or who will incur extreme hardship in life by paying for such costs. However, this does not take the form of fee waiver, but only defers payment of the fees (article 83 of the Code). Whether or not a party meets the requirements for the aid is examined on case-by-case basis by considering his/her income. In 1997, there were 1467 motions for aid in district courts, and there were 793 instances of grant approval (54.1%)^[118].

e) Is a procedure in forma pauperis available? How does the plaintiff get recognized as poor?

See (d) above.

f) Is ADR incorporated in the ordinary procedure? Are there mandatory attempts to conciliation? Are alleged victims of crimes encouraged/required to mediate with alleged perpetrators?

As mentioned in 3 (e), the court may refer the case to conciliation in civil matter under certain conditions. If conciliation procedure takes place, the court may order the suspension of the proceedings for the lawsuit (article 5, Rule for Conciliation in Civil Matter^[119]). Additionally, the new Law for Promotion of Alternative Dispute Resolution extended this possibility to cases with pending mediation procedures by certified ADR organizations (article 26 of the Law).

Alleged victims of crime are not required to mediate with alleged perpetrators, but the latter are strongly encouraged to settle with victims – one of the main grounds for alleviation of penalty. For the effect of thus agreed settlement, see (b) above.

5. Legal Aid Programs

a) Are legal aid schemes available in your system?

Except for some sporadic attempts by bar associations, legal aid schemes, apart from the traditional "aid in litigation" provided in the Code of Civil Procedure (referred to in 4 (d) above), were first established after the Second World War by the founding of the Japan Legal Aid Association (JLAA) in 1952.

Although the Constitution of 1946 guaranteed explicitly the right of access to the courts and the foundation of JLAA was led by this article, JLAA started as a private organization financed exclusively by private donations^[120]. This resulted in perennial fund shortage of this organization, and it consequently determined a basic policy to obligate aid recipients to repay. Even after 1958, the year in which JLAA first accepted subsidy from the government, the amount of aid remained quite low until recently^[121].

Thus, the expansion of the legal aid system has been a long-pending question in Japan. After several attempts of reform, the Civil Legal Aid Act was enacted in 2000; for the first time, it specified legally the role of the national government in legal aid. The JLAA was authorized by the Minister of Justice to administer legal aid programs. The subsidy by the national government has been substantially increased^[122].

Recently, the next step for the expansion of legal aid was achieved through the enactment of the Law on Comprehensive Legal Support in 2004. The Japan Center for Judicial Support (see 2 (f-1) above) established by this Law will replace JLAA which is scheduled to be dissolved in 2007. The Law also extended the responsibility of the national government for the legal aid programs (articles 8 and 11).

b) Are free attorneys provided for poor litigants?

Free attorneys are provided only in criminal cases. Article 38 (3) of the Constitution provides that at all times the accused shall have the assistance of competent counsel who shall, if the accused is unable to secure the same by his own efforts, be assigned to his use by the State. Accordingly, the requirements are determined by the Code of Criminal Procedure (article 36). If an attorney is designated by the State, the attorney cannot refuse, without due reason, to undertake the matter (article 24, Attorney Law). State-designated attorneys are compensated with fees paid by the State (see below (f)).

One shortcoming of this system has been that court-appointed counsels were only available after the indictment. In other words, no free attorneys were available for detained suspects until the formal trial proceedings began. This has been constantly criticized as curtailing the right to due process. Thus, since 1990, local bar associations established a scheme called “attorneys on watch (Tôban Bengoshi)”^[123]. Attorneys who registered voluntarily stand-by for certain days of the year and are dispatched on request by detained suspects. They are given one free consultation and advices by the attorney on watch^[124]. Additionally, since 1990, legal aid by JLAA is also available to a suspect who appoints an attorney as his/her defense counsel^[125]. In most cases, the repayment of the amount paid is exempted^[126].

Recently, the Justice System Reform Council^[127] recommended the extension of this scheme to court-appointed counsels, and therefore, free attorneys will be available for the pre-indictment stage as well^[128]. The new scheme is expected to start in October 2006.

c) Are free attorneys provided only for defendants or also for plaintiffs?

Free attorneys are available only in criminal cases, thus only for the accused and not for the plaintiffs in civil cases.

d) Are free attorneys available also in civil cases or only in criminal cases?

Free attorneys are available only in criminal cases. See (b) above.

In civil cases, legal aid is provided by the JLAA (see (a) above); it must be repaid, and repayment is exempted only on an exceptional basis.

e) Are free attorneys available in administrative cases?

Free attorneys are available only in criminal cases. See (b) above.

f) How are attorneys compensated in these cases? Are their fees significantly reduced compared to ordinary fees?

Court-appointed defense counsels in criminal cases are compensated with fees paid by the State (article 38, Code of Criminal Procedure). The amount is determined by the trial courts according to what it holds as appropriate (article 8 (2), Criminal Procedure Costs Act^[129]). In general, it is determined according to a standardized scale provided by the Supreme Court. According to the scale of compensation for 2003, the fees for average case with three days of trial are: 61,300 yen for cases in summary courts, 85,600 yen for district courts, 92,300 yen for high courts, and 99,600 yen for the Supreme Court. The fees compensated according to this scale are significantly lower than ordinary fees^[130] (and which have been even reduced since 2003), and therefore, have caused strong dissatisfaction among attorneys. Bar associations have consistently demanded increase in compensated fees for court-appointed defense counsels^[131].

g) In case of reduced compensation can attorneys refuse to serve poor clients?

As noted above in (b), an attorney cannot refuse to undertake the matter without due reason, if appointed by the court to serve as a free defense counsel of an accused.
In the case of civil cases with legal aid, an attorney is not prohibited from refusing to serve, and refusal does happen due to reduced compensation in such cases. However, as mentioned above in 2 (f), local bar associations strongly urges its members to engage in such activities to a certain extent as a kind of pro-bono activities. Furthermore, in normal cases, the JLAA requests bar associations to recommend an attorney who is appropriate for a case, and in such instances, it is unlikely for the recommended attorney to refuse service^[132].

h) How much does the government spend in legal aid programs? Has the budget allocated to these programs increased or decreased in recent times?

As noted in (a), the expense of government for legal aid programs has substantially increased since the enactment of the Civil Legal Aid Act in 2000 (about 4,500,000,000 yen in 2005).

i) Can you briefly describe the way in which such a program, if at all available works in your system?

Upon a request from a litigant, the JLAA initially provides legal consultation service which is free for those who meet the income requirement^[133]. Subsequently, if legal representation in a lawsuit appears to be necessary, the JLAA checks the income of the litigant and the plausibility of his/her claim. If his/her eligibility is determined, the JLAA requests the bar association to recommend an attorney appropriate for the case. It pays temporarily the retaining fee and other costs incurred from the procedure if not deferred by the court^[134]. It also pays the contingent fee if deemed necessary. Normally, the monthly repayment (generally about 10,000 yen) begins from the month following the month in which the grant was provided.

Exemption of repayment is exceptional; only 3,615 cases were exempted among 49,212 cases (7.3%) in 2004.

In October 2006, the role of JLAA is planned to be replaced by the Japan Center for Legal Support.

^[1] This quite brief outline of Japanese legal history is based on my previous article focusing on the development of the modern civil procedure system in Japan. See S. Kakiuchi, Reform des Zivilprozessrechts in Japan, ZZPInt 9 (2004), p. 267. For a recent overview of Japanese legal system and legal culture, see e.g. T. Kinoshita, Legal System and Legal Culture in Japan, J.Japan.L, No. 11, p. 1 (2001).
^[2] Letter of August 9th 1881 from Grandville, British Foreign Minister to Mori, Japanese minister in London.
^[3] For example, German Civilprozessordnung of 1877 provided a model for Japanese Code of Civil Procedure of 1890.
^[4] Art. 76 (2) of the Constitution (promulgated on Nov. 3, 1946) prohibits to establish any extraordinary tribunal.
^[5] Art. 32: No person shall be denied the right of access to the courts.
^[6] This objective was expressed by the slogan "to make civil procedure easier to understand and easier to use".
^[7] About this reform in general, see K. Rokumoto, Overhauling the Judicial System: Japan's Response to the Globalizing World, in: J. Japan.L, No. 20, p. 7- (2005).
^[8] Recommendations of the Justice System Reform Council (Shihô Seido Kaikaku Shingi-kai Iken-sho) (laid on June 12, 2001) (hereafter: "Recommendations").
Its English version is available at
http://www.kantei.go.jp/foreign/policy/sihou/singikai/990612_e.html.
^[9] E.g.: Amendment of Code of Civil Procedure (by Law No. 108 of 2003), Code of Criminal Procedure (by Law No. 62 of 2004), Code of Administrative Procedure (by Law No. 84 of 2004), etc. as well as enactment of Arbitration Law (Law No. 138 of 2003), Law for Promotion of Alternative Dispute Resolution (Law No. 151 of 2004), Law Concerning Participation of Lay Assessors in Criminal Trials (Law No. 63 of 2004), etc.
^[10] Sôgô Hôritsu Shien Hô, Law No. 74 of 2004.
^[11] Saiban no Jinsokuka ni kansuru Hôritsu, Law No. 107 of 2003.
^[12] Bill for amendment of Civil Procedure Costs Act (laid on March 2, 2004). The central argument against the bill was that such a responsibility puts an additional obstacle to some litigants intending to sue large organizations such as major enterprises or public agencies.
^[13] E.g.: article of Asahi Shimbun (one of the major Japanese newspapers) on Feb. 23, 2003 criticizing delay of justice.
^[14] See infra 1 c. As recent study on the question, see e.g. Ch. Wollschläger, Historical Trends of Civil Litigation in Japan, Arizona, Sweden and Germany: Japanese Legal Culture in the Light of Judicial Statistics, in: H. Baum (ed.), Japan: Economic Success and Legal System, pp. 89- (1997).
^[15] "Commentators, both within and without Japan, are almost unanimous in attributing to the Japanese an unusual and deeply rooted cultural preference for informal, mediated settlement of private disputes and a corollary aversion to the formal mechanisms of judicial adjudication." J. O. Haley, The Myth of the Reluctant Litigant, 4 The Journal of Japanese Studies 359 (1978).
^[16] In the case, the mother, who was going for shopping, tried to take their son, who was playing with their neighbors' son and wanted to stay. On a suggestion of the defendant, the mother decided to leave the son, expecting the defendants to look after him. The defendants recognized that the plaintiffs' son had drowned in a small pond 50 meters away from their home, by their son's alarm that the plaintiffs' son didn't come back from the pond. 30 minutes later, on his mother's return, he was found dead.
^[17] "Harsh judgment against the kindness of neighbors" (Mainichi-Shimbun, 25 Feb., 1983).
^[18] The survey of Prof. Katô's group mentioned below (see 2 (g-2)) suggests that the type of case influences the evaluation of the action taken by a litigant.
^[19] Kaji Shinpan Hô, Law No. 152 of 1947.
^[20] Minji Chôtei Hô, Law No. 222 of 1951.
^[21] Dissenting opinion by Justice Mano criticizing compulsory conciliation proceedings (Sup. Ct., Oct 31, 1956, 10 Minshû 1361).
^[22] E. g.: "Don't mention rights or duties in conciliation proceedings: avoid any formality! (Kenri gimu nado to shikaku ni mono iwazu)" etc. Now we find no such posters in court rooms. They disappeared presumably sometime during 1970s'.
^[23] Survey of Users of Civil Procedure (Minji soshô riyôsha chôsa) (hereafter, Survey 2000). This survey is based on interviews with 591 former plaintiffs and defendants.
^[24] Literally "a sued". The origin of this term is presumably the translation of German "Beklagter".
^[25] Literally "a sued person", which appears to come from German "Angeklagter".
^[26] Among 79,210 judgments on the merit rendered in the first instance in 2004, 79,121 was conviction. The rate of conviction is 99.89%. See Annual Report of Judicial Statistics (Shihô Tôkei Nenpô), 2004, Table 9 (accessible at http://www.courts. jp/search/jtsp0010?).