Criminal Law and Procedure

The primary statute of criminal law in Japan is the Criminal Code of 1907. There are various separate laws which provide for specific crimes, generally denoted as ‘special criminal laws’. Some offences were added by way of such special laws in the recent years including the law against terrorist acts of 2019. The The Criminal Code is divided into the General Part and the Special Part. The former lays down the general principles and basic concepts of criminal law such as intention, negligence, attempt, accomplice, etc. The latter lists specific offences. Constitution guarantees the rights of defendants and suspects. Criminal procedure has become much more transparent, and better protection is given to suspects.

Law of Torts

Tort is part of the Law of Obligations. Provisions on tort liability are found in Book Three, the Law of Obligations, of the Civil Code. There is only a single general provision on tort. The legislature expected rules to develop out of case law. A person who intentionally or negligently infringes upon others’ right or interests protected There is a body of case law which sets out details of tort law such as causation and fault. There have been cases where the shift of the burden of proof was at issue.

The History of Modern Japanese Law

Japan built its modern legal system on the basis of the codes imported from Europe, namely Germany and France. After the Second World War, there was some influence of US law, e.g. the Constitution and the Code of Criminal Procedure. The new Constitution, which remained unchanged until today, has introduced significant changes in the political and social system of Japan. It was proclaimed that sovereignty rested with the people and not the emperor. The Diet elected by universal election became the supreme body of the state. Another major reform was triggered by the US-Japan Structural Impediments Talks in 1989–1990.

Introduction

Japanese law is part of the Civil law (Franco-German) legal system. There have been discussions on the ‘Japanese legal consciousness’, but now, it is agreed that there is no such ‘uniqueness’ of Japanese law. On the other hand, the approach of the courts in interpreting statutes and their role in interpreting contracts may represent some unique aspects of Japanese law.

Anti-Monopoly Law

In 2014, the Japanese Anti-Monopoly Law came from the United States. It was dormant for decades until 1990 when the US–Japan SII Talks were completed. Since then, Anti-Monopoly Law was invigorated. The business system in Japan became much more transparent and fairer in the last several decades. Cartels, including bid-rigging, are now under control. In 2014, the Anti-Monopoly Law was substantially amended and its quasi-judicial power was taken away

Law of Obligations and Contracts

The Constitution protects property rights, but it is not ‘sacrosanct’. Property rights can be restricted on the ground of public welfare. Real security rights are covered in this part. Although real property rights are to be created by statutes only, in reality, there have been cases where property rights were created by case law on the basis of commercial practice.

Property Law

The Constitution protects property rights, but they are not ‘sacrosanct’. Property rights can be restricted on the ground of public welfare. Real security rights are covered in this part. Although real property rights are to be created by statutes only, in reality, there have been cases where property rights were created by case law on the basis of commercial practice. The Civil Code lists ten kinds of real rights. In addition to ownership, there are four types of real rights which allow a person to use another’s property: superficies, emphyteusis, servitude, and commonage. There are four types of real security rights: rights of retention, preferential rights, pledge, and hypothec.

The Protection of Fundamental Human Rights

In contrast to the previous Constitution, which was modelled on the 1850 Prussian constitution, the current Constitution of 1946 was heavily influenced by the US Constitution. In general, the courts has been instrumental in developing human rights law via constitutional review, particularly since the 1970s there have been a sizeable number of cases where the court found a law to be unconstitutional. The latest case involved a provision of the Civil Code which found the differential treatment of legitimate and illegitimate children in inheritance to be against equal treatment.

Labour Law

Basic labour laws were introduced into Japan after the Second World War from the US. A new law—Labour Contract Law—was enacted in 2007. This law more or less codifies the existing case law. A new alternative dispute resolution (ADR) system for employment disputes was introduced.

Civil Procedure

The new Code of Civil Procedure was adopted in 1996. The latest amendment to this Code involves provisions on the jurisdiction of Japanese courts in cross-border disputes. The matter had been left to the courts, but now the system has become much clearer.