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21st Century Shape of Japan Series, No. 7
THE DEREGULATION OF ATTORNEY SERVICES
(WTO) ENHANCES THE COLLECTIVE RIGHT OF SELF-DEFENSE
On Reading the "final opinion" of the Judicial System Reform
Commission
| Q |
What was the history of judicial system reform
before the Final Opinion of the Judicial System Reform Commission
that was issued on June 12? |
| A |
In the history of postwar judicial reform, the Provisional
Judicial System Investigation Commission, which was established
in September 1962 and issued its opinion in August 1964, is
famous. The famous Dr. Sakae Wagatsuma was named chairman.
Even today, the contents of that opinion still ring true.
The sentences are written in a high style, and the process
of the Commission's hearing as well as the differences of
opinions are easy to understand. The explication of the issues
and the opinions thereon are astutely analyzed.
Thereafter, the Round-table Conference on Basic Judicial Issues
was held from April 1987 until March 1988, and an opinion
was issued. This opinion states that the number of successful
applicants of the national bar exam shall be 700 for the time
being. The reason was that a large number of practicing lawyers
was deemed necessary to keep in line with the advancement
and internationalization of Japanese society and the diversification
of social life. This Round-table Conference on Basic Judicial
Issues could be called epoch making, as it was sponsored by
Tsutomu Hotta, Personnel Section Chief of the Justice Minister's
Secretariat, and heard the views of a total of 3,403 people
through a random-sample survey of a cross-section of society.
Our company also affirmatively stated its views at the hearings
concerning the realities and issues of the examination and
the direction of reform.
In December 1988, the Round-table Conference on Basic Judicial
Issues was changed to the Council of Attorneys, Judges and
Prosecutors, and lively discussions were held. We at Tokyo
Legal Mind also gathered the signatures of 25,000 bar exam
takers from April of 1987 and submitted them to all authorities
concerned. One of the demands was that the number of successful
applicants of the national bar exam be increased to 1,000.
This Council of Attorneys, Judges and Prosecutors put the
increase in successful applicants (600 from 1991 and 700 from
1993) and "Plan C," currently in effect, in its
opinion, and the national bar exam was revised in April of
1991.
Thereafter, the Judicial Training System Reform Council started
functioning from June 1991, and issued its opinion in November
1995. The opinion called for increasing the number of successful
applicants to 1,000 and 1,500 in the mid-term as well as shortening
the training period and requiring the study of both civil
and criminal procedure. These goals were realized as a result
of the 1998 revision of the National Bar Exam Law. "Plan
C" was put into effect from 1996, and the number of successful
applicants was raised to 1,000 from 1999. This series of reforms
is very satisfying for someone like me, who long fought for
increases in the number of successful applicants. The Judicial
System Reform Commission started functioning from July 1999
with a two-year deadline against this backdrop.
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| Q |
What special characteristics does the Judicial System Reform
Commission have compared to prior revisions? |
| A |
Postwar judicial system reforms featured three main points:
[1] promoting the unification of the legal profession, [2] reform
of the court system and [3] increasing the population of the
legal profession as their main themes, and the Commission members
were members of the legal profession and academics. In contrast,
the current reforms feature four characteristics: [1] the membership
of the Commission includes many people other than members of
the legal profession and academics, [2] the gathering of opinions
from various fields and walks of life (through the holding of
hearings in various fields, the collection of public comments
by email and the holding of public meetings at four locations
throughout the country), [3] observation of the realities of
the judicial systems of Western countries and [4] disclosure
of the minutes of all meetings on Internet websites.
Further, the subject matter of the hearings was of a very wide
scope. Two features of the discussion of the court system were
[1] the introduction of the court-specialist support system,
the court-member system andcivil-criminal case coordination
as well as the proposal of affirmative steps to resolve intellectual
property rights, labor cases, personnel cases and administrative
cases and [2] the expansion and activation of Alternative Dispute
Resolution, a means to settle disputes out of court.
Regarding increasing the population of the legal profession,
the Commission recommended that graduate schools of law be established
and that the number of successful applicants be raised to 3,000
per year or more. Increasing the population of the legal profession
has been consistently advocated ever since the Provisional Judicial
System Investigation Commission, but this time for the first
time it was announced together with a plan for graduate schools
of law.
Regarding reform of the attorney system, the Commission recommended
the following main ideas [1]Articles 30 and 72 of the Attorney
Law be revised, [2] the regulations on attorney compensation
be reconsidered and [3] the appointment of attorneys be pushed
forward by training large numbers of them.
Regarding related legal professions such as patent attorneys
(benrishi) and judicial scriveners (shihoshoshi), the Commission
offered forward-looking proposals concerning [1] thenotion of
granting the right to represent a client at trial and [2] the
promotion of one-stop shopping [through inter-disciplinary partnerships].
The commission also looked favorably on issues such ascompany
legal officers, special prosecutors, deputy prosecutors and
summary court judges.
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| Q |
What is the likely effect of this "final opinion"? |
| A |
The Commission's "final opinion" is getting a tailwind
from the Koizumi Cabinet's "structural reform with nothing
sacred" and the "Comprehensive Regulatory Reform Commission"
established in the Cabinet Office. Further, the Office of Preparatory
Work for Promotion of Judicial System Reform, established in
July, has started work on legal reforms. The proposals will
probably be written into law immediately in a special session
of the Diet this fall and in next year's regular session.
In particular, because this opinion covers a broad scope, a
large number of laws will be revised.
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| Q |
Looking back at the numerous judicial system
reforms in the postwar period, what shape should the judicial
system of the 21st Century take? |
| A |
I have the following ideas about reform of Japan's judicial
system. First, postwar Japan became the world's second greatest
economic power through the government, business, academia and
the people working in unison for economic expansion under the
protection of the nuclear umbrella of the United States. In
this process, practicing legal specialists such as attorneys
took hardly any part in planning the expansion of GDP.
Certified public accountants contributed to that expansion by
means of the statutory audit system by barely adopting incorporation
in the 1950s.
The principal legal professions, including attorneys, patent
attorneys, licensed tax accountants (zeirishi) and judicial
scriveners did not promote the expansion or incorporation of
their offices, but rather limited the expansion of their professional
ranks and did everything possible to erect barriers to entry.
As a result, they descended to the status of industrial guilds
of the Middle Ages and turned their backs on the many needs
of the people.
Comparison with the roles fulfilled by lawyers in Western nations
shows an unmistakable difference. Work should have been started
on increasing the population of the legal profession and integration
with related legal professions back in the 1950s.
Similarly, with regard to the trial system and prosecution system,
the adoption and expansion of measures for both in-court and
out-of-court dispute resolution (the expansion of ADR, the speeding
up of trials, special courts for cases that require specialized
knowledge and the introduction of court specialists) should
have been carried out in the 1950s and 1960s to deal with the
expansion of Japan's economic scale and the opposition and intensification
of the interests of citizens of all walks of life. Most of these
issues had already been indicated in the 1964 opinion of Provisional
Judicial System Investigation Commission, but they were shelved
by the three parties of the legal profession, especially the
bar association.
These reforms are now about to be realized. It has already been
40 years. The wealth, profits and social justice lost during
that time are immeasurable. Setting that aside, however, the
problem is as follows.
That is to say, second is the impact on Japan's judicial system
caused by the complete shift toward capitalism and globalization
after the end of the Cold War. Specifically, as to the economy,
due to the advent of an era of great competition (i.e., the
phenomenon of the logic of capitalism sweeping the entire world
as a result of the collapse of socialist systems), U.S. values
and ways of thinking are overwhelming Japan's economic management.
In the political realm, notwithstanding the Japan-U.S. cooperation
policy based on the Japan-U.S. security system, the antagonism
between the national interests of Japan and those of the U.S.
based on the doctrine of sovereign statehood is gradually becoming
clear.
Accordingly, in international relations, compromise and consensus
through treaties and agreements are becoming important national
strategies in all aspects of foreign policy, defense, commerce
and culture. And those who can break through this national crisis
and thereby maintain and extend Japan's national interests are
the legal technocrats with excellent skills in the fields of
defense, commerce and culture. The present "final opinion"
does not respond to the issues presented by this second impact.
The final opinion only included a mere three pages entitled
"Dealing with Internationalization," and the proposals
therein are based on the thinking of the Cold War era. In the
World Trade Organization (WTO), the deregulation of professional
services is being negotiated, and work toward the expanded application
of the already-concluded "Rules Concerning Domestic Regulation
of the Accounting Field" (December 1998) to the deregulation
of professions such as attorneys, patent attorneys, licensed
tax accountants (i.e., the freedom of the attorneys, etc. of
WTO member nations to mutually provide host-country legal services
in host countries) is progressing. Within the European Union,
professionals are deregulated, and the lawyers and accountants
of each member nation are working under reciprocal admissions.
Successful applicants to the national bar exam of Korea will
number 1,000 this year and are expected to number 1,100 next
year, and China is boldly attempting to rival the legalistic
United States by achieving an infrastructure of 500,000 lawyers
over the next several years.
Japan, in between the legal strategies of these great powers,
is ignorant of the common sense of international law and even
hesitates to exercise the collective right of self-defense.
At present, the aim of judicial reform should be achieving the
justice of law not in domestic, but in foreign relations (foreign
policy, commerce and professional services) and thereby securing
the interests of Japan. We should learn from the history of
our Meiji predecessors securing the position of a first-class
power by adopting international law as supreme law. |
(Author: The form of question and answer was taken to clarify the
issues.)
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