Business law essay

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BUSL377 Japanese Trade Law -

Prosecutors Lawyers & Quasi-Legal Professions Justice System Reform

Dr Kay-Wah Chan E4A 241 Tel: 9850 7088 Email: [email protected] (2017)

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Note:

 If there is any discrepancy between the Textbook and these slides/lecture notes, follow these slides/lecture notes.

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Legal institutions

 Courts

 Legal professions (hôsô 法曹) • Judges

• Lawyers

• Prosecutors

2017 3

Prosecutors  Hierarchy of the Public Prosecutor’s Office:

• Supreme Prosecutor’s Office (Supreme Court) • High Prosecutor’s Office (High Courts) • District Prosecutor’s Office (District Courts) • Ward Prosecutor’s Office (Summary Courts)

 The Minister of Justice has supervisory power over the prosecutors, i.e. prosecutors do not have such independence like judges

2017 4

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Prosecutors As of 2015:  One Prosecutor-General (検事総長) (at the

Supreme Prosecutor’s Office);  One Deputy Prosecutor-General (次長検事) (at the

Supreme Prosecutor’s Office);  Eight Presidents (検事長) of High Prosecutor’s

Office;  1,835 public prosecutors (検事) (distributed

among the Prosecutor’s Office at all 4 levels);  899 assistant public prosecutors (副検事) (at the

District and Ward Prosecutor’s Office).

Source: Ministry of Justice, 『平成27年版法務年鑑』 (Yearbook of the Ministry of Justice 2015), p.384.

2017 5

Prosecutors  Public prosecutors appointed from

graduates of LTRI

 Appointment • Prosecutor-General: by the Cabinet with

attestation by the Emperor

• Deputy Prosecutor-General: same as above

• Presidents of High Prosecutor’s Office: same as above

• Other prosecutors: by the Minister of Justice

2017 6

Lawyers  Relatively new when compared with other

advanced economies  Pre-War:

• Kujishi (innkeepers) in Tokugawa period • Early Meiji period: “daigen’nin” system introduced • “Lawyer (called as bengoshi in Japanese)” only

introduced in 1893; under supervision by the Ministry of Justice via the procuracy

 Post-War reform: • Autonomy • The Japan Federation of Bar Associations + local bar

associations: power over registration of and disciplinary action on lawyers

 Justice System Reform (from 2001)

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Lawyers

 Called “bengoshi 弁護士” in Japanese

 Some American and Japanese literature refer them as “attorneys”

 Attaining qualification → registration at a local bar association and the Japan Federation of Bar Associations (JFBA)

 52 local bar associations (one per District Court region but Tokyo has three bar associations)

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Lawyers

 Small number as compared with many Western countries • As of 31 March 2016: 37,680 bengoshi

• There already is a sharp increase: 22,021 bengoshi (31/3/2006) and 15,456 bengoshi (31/3/1996)

• Japan has one lawyer per 3373 people (2016), USA (per 264) (2014), England & Wales (per 406) (2014/15), Germany (per 497) (2015), France (per 1071) (2015)

(Source: The Japan Federation of Bar Associations, 『弁護士白書2016年版』 (Lawyers White Paper 2016) (Tokyo: Japan Federation of Bar Associations, 2016), pp. 30, 49 and 52)

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Lawyers

 Unevenly distributed; concentration in big cities such as Tokyo, Osaka and Nagoya • Out of the 37,680 bengoshi in 2016, Tokyo prefecture

has 17,565, Osaka prefecture 4,333 and Nagoya (Aichi prefecture) 1,857.

• Some remote/rural prefectures or District Court regions have very small number, e.g. Akita (78), Tottori (67), Hakodate (53) etc.

(The above data are as of 31 March 2016 and are from: The Japan Federation of Bar Associations, 『弁護士白書2016年版』 (Lawyers White Paper 2016) (Tokyo: Japan Federation of Bar Associations, 2016), p.33)

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Bengoshi per 10,000 people

GDP (¥ million) / bengoshi

Civil ordinary litigation cases (District Court) / bengoshi

Tokyo 13 5,739 2.3

Osaka 4.9 9,029 3.6

Aichi (Nagoya) 2.48 20,876 4.4

Tottori 1.17 25,994 6.5

Shiga 1 42,936 7.4

Akita 0.76 44,581 5.6

Uneven distribution – justified by differences in population, volume of litigation and economic activities?

(Source of data: The Japan Federation of Bar Associations, 『弁護士白書2016年版』 (Lawyers White Paper 2016) (Tokyo: Japan Federation of Bar Associations, 2016), pp.39-41)

Lawyers

2017

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Lawyers  Most lawyers in small practices

• 25.0% of bengoshi in solo-practice • 15.6% in firms of two bengoshi • 24.0% in firms of 3-5 bengoshi • 13.5% in firms of 6-10 bengoshi

 From 2000, large law firms also emerge (mostly through mergers and/or large intake of new LTRI graduates); 5 law firms with more than 300 bengoshi (March 2016)

(The above data are as of March 2016 and are from: The Japan Federation of Bar Associations, 『弁護士白書2016年版』 (Lawyers White Paper 2016) (Tokyo: Japan Federation of Bar Associations, 2016), p.56)2017 12

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Lawyers

 Most lawyers in general civil litigation practices

 In the past, very small number of commercial lawyers (called “business lawyers” in Japan)

 With rapid growth of large law firms (which are commercial law firms) and changes in business environment in Japan (resulting in increase in commercial legal needs), there is an increase in commercial lawyers

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Lawyers

 Since April 2002: lawyers allowed to incorporate (forming legal professional corporation)

 Legal professional corporation can have branch offices in Japan

 As of 31 March 2016, there were 929 legal professional corporations

(The Japan Federation of Bar Associations, 『弁護士白書2016年版』 (Lawyers White Paper 2016) (Tokyo: Japan Federation of Bar Associations, 2016), p.58)

2017 14

Professional legal education and training in Japan

 for nurturing legal professionals

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Pre-Justice System Reform – up to 2005

National Legal Examination (National Bar Examination)

Legal Training and Research Institute

Lawyers Assistant JudgesProsecutors

Part 1

Part 2 (3 Parts: Short, Essay, Oral)

Degree holders etc. e.g. graduates of law faculties, etc.

Non-degree holders

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Post-Justice System Reform (1):

1. Old Bar Exam (no more after 2010)

Old National Legal Examination (Old National Bar Examination)

Legal Training and Research Institute

Lawyers Assistant JudgesProsecutors

Part 1

Part 2 (3 Parts: Short, Essay, Oral)

Degree holders etc. e.g. graduates of law faculties etc.

Non-degree holders

N.B. Oral exam in Part 2 continued to 2011

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Post-Justice System Reform (2):

2. New Bar Exam (from 2006)

New National Legal Examination (New National Bar Examination) 2 Parts: Short & Essay

Legal Training and Research Institute

Lawyers Assistant JudgesProsecutors

Law Schools Law degree holders (i.e. graduates from faculties of law)

2 Years 3 Years Non-law degree holders

(From 2011) Preliminary Examination

2017 18

Results of New National Legal Examination (2006-2016)

2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016

No. of applicants

2137 5401 7842 9734 11127 11891 11265 10315 9255 9072 7730

No. of exam- takers (a)

2091 4607 6261 7392 8163 8765 8387 7653 8015 8016 6899

No. of passers (b)

1009 1851 2065 2043 2074 2063 2102 2049 1810 1850 1583

Pass rate (b/a x 100%)

48.3% 40.2% 33.0% 27.6% 25.4% 23.5% 25.1% 26.8% 22.6% 23.1% 22.9%

Source: Ministry of Justice’s website. 2017 19

Registered foreign lawyers (Gaikokuhô-jimu-bengoshi)  System introduced by the Special Measures Law

Concerning the Handling of Legal Business by Foreign Lawyers (Law no. 66 of 1986) (effective from 1 April 1987)

 Several amendments afterwards (easing restrictions, i.e. deregulation/liberalisation)

 Amendment passed in 2003 (effective from 1 April 2005): permitting GJB to form partnership with bengoshi and/or employ bengoshi

 Amendment passed in 2014 (effective from 1 March 2016): permitting GJB to form legal professional corporation2017 20

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Registered foreign lawyers (GJB)  Foreign qualification + at least 3 years’ practical

experience in country of primary qualification  Approval from Minister of Justice  Register with JFBA (Nichibenren) through a local

bar association as special members  Can provide legal service relating to:

• laws of the country of primary qualification; and • laws of another jurisdiction where he/she has

qualification and designation from the Minister of Justice has been obtained

 Cannot practice Japanese law

2017 21

Registered foreign lawyers (GJB)  As of 1 April 2016, 391 GJB  Rapid increase in number of GJB since

around 1999 (1 April 1998: 87 GJB; 1 April 2003: 189 GJB)

 Expansion of foreign law firms’ operation in Japan

(The above data are from: The Japan Federation of Bar Associations, 『弁護士白書2016年版』 (Lawyers White Paper 2016) (Tokyo: Japan Federation of Bar Associations, 2016), p.61)

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Quasi-legal professions 1. Judicial scriveners (司法書士 Shihô-shoshi)

• Drafting documents for filing with courts; mainly handling registration matter (real estate and company)

• N.B. amendment in law as a result of justice system reform (effective from April 2003):

• Right of representation in Summary Courts after taking an induction course and passing a certification examination

2. Administrative scriveners (行政書士 Gyôsei- shoshi)

• Drafting documents for clients to submit to administrative agencies

3. Tax attorneys (税理士 Zeirishi) • Handling tax matter: drafting and filing of documents

with the tax office, providing advice on tax matter etc.

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Quasi-legal professions 4. Patent attorneys (弁理士 Benrishi)

• Representing clients in patent, utility model, design and trademark applications before the Japan Patent Office

• Representing clients in an administrative proceeding in appealing the Patent Office’s decision

• (amendment of law in 2002; effective 2003) patent attorney passing a special examination can represent clients in infringement litigation along with a bengoshi

5. Notaries (公証人 Kôshônin) • Mainly retired judges, prosecutors and officials of the

Ministry of Justice

• Mainly certifying and authenticating legal documents 2017 24

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Number of lawyers and quasi-legal professionals (2016)

Number

Lawyers 37,680

Judicial scriveners (certified judicial scriveners)

22,013 (16,108)

Administrative scriveners 45,441

Tax attorneys 75,643

Patent attorneys 10,871

All figures are as at 31 March 2016, except for judicial scriveners: 1 April 2016.

(Source: The Japan Federation of Bar Associations, 『弁護士白書2016年版』 (Lawyers White Paper 2016) (Tokyo: Japan Federation of Bar Associations, 2016), p.53)

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In-house legal departments in companies  Used to be rarely staffed by lawyers

 Even if with in-house lawyers, number was small

 Staffed by e.g. graduates of law faculties with on-the-job training, sometimes coupled with overseas study

 Substantial increase in number of in-house lawyers in recent years (188 in 2007 to 1,707 in 2016)

(Source: The Japan Federation of Bar Associations, 『弁護士白書2016年版』 (Lawyers White Paper 2016) (Tokyo: Japan Federation of Bar Associations, 2016), p.127)2017 26

Justice System Reform

Three pillars of the reform:

1. To construct a justice system that responds to public expectations

2. To reform the legal profession making it rich both in quality and quantity

3. To establish the popular base

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Reference List Hiroshi Oda, Japanese Law (Third Edition; 2009).

The Japan Federation of Bar Associations, 『弁護士白書2016年版』 (Lawyers White Paper 2016) (Tokyo: Japan Federation of Bar Associations, 2016).

伊藤歩 『弁護士業界大研究』 産学社 2009.

Kay-W ah Chan, “Legal Malpractice Lawsuits in Japan: Past, Present and Future” (2016) International Journal of the Legal Profession DOI: 10.1080/09695958.2016.1247709.

Kay-W ah Chan, "Setting the limits: who controls the size of the legal profession in Japan?" (2012) 19(2-3) International Journal of the Legal Profession 321-337.

Kay-W ah Chan, "Justice System Reform and Legal Ethics in Japan" (2011) 14(1) Legal Ethics 73-108.

Kay-W ah Chan, "The Emergence of Large Law Firms in Japan: Impact on Legal Professional Ethics" (2008) 11 (2) Legal Ethics 154-180.

Setsuo Miyazawa, Kay-W ah Chan and Ilhyung Lee, "The Reform of Legal Education in East Asia" (2008) 4 Annual Review of Law and Social Science 333-360.

Kay-W ah Chan, "Foreign Law Firms: Implications for Professional Legal Education in Japan" (2005) 10(20) Zeitschrift für Japanisches Recht (Journal of Japanese Law) 55-79.

Kay-W ah Chan, "The Reform of the Profession of Lawyers in Japan and Its Impact on the Role of Law" in Yves Dezalay and Bryant G. Garth (eds) Lawyers and the Rule of Law in an Era of Globalization (Routledge, 2011) 185-216.

Ministry of Justice website.

Ministry of Justice, 『平成27年版法務年鑑』 (Yearbook of the Ministry of Justice 2015)

The Justice System Reform Council, Recommendations of the Justice System Reform Council - For a Justice System to Support Japan in the 21st Century (12 June 2001) <http://japan.kantei.go.jp/judiciary/2001/0612report.html>.

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