D'zLEC_navigation

Sorimachi Speaks

'THE SHAPE OF JAPAN IN THE 21st CENTURY' SERIES, No. 33

Accelerating the Creation of the "Japanese Lawyer" through Integrating the Legal Professions ~ Making Broad Reference to the EU ~

1. National Examinations _ Still in the Dark Ages


The various national examinations for the legal professions are nearly finalized. (See below Materials 1). The pass rates were 2.3% for the bar examination, 2.8% for the judicial scriveners' examination, 6.4% for the patent attorneys' examination and 8.4% for the certified practicing accountants' examination. The last decade or so has seen a continuation of the deflationary economy, restructuring and employment instability and this has produced a throng of examinees for the national examinations. However, we need to ask those in charge of the examinations exactly what kind of specialized ability they want to identify through examinations with a pass rate at the 2% level. To say that "to churn out large numbers of successful candidates would risk a lowering of quality" may be a clich_ used in controlling entry to a profession, however it is questionable whether the legal professions are professions where quality can only be controlled by this strict initial culling. When a pass rate drops below 10% the detriment outweighs the benefits. This is equal to the excessive difficulty of the Chinese bureaucracy examinations of long ago, which were designed to maximize entry controls. Although in the world of finance, the abolition and relaxation of controls and the use of checks after the fact are now the norm, the legal world is still in the Dark Ages. The world has become a capitalist society, plunging into an era where nations vie for national strength by freely competing in the same markets. Is it right to have strict domestic controls exerted between countrymen when it is not clear as to whether we are qualified to enter those markets? It is the consumers who use a service who should decide whether the quality of the service is good or bad, not examiners. Leaving that judgment to the market is the current norm in international society. Is it right for us to be fighting amongst ourselves within closed Japan? Just as at the time of the Meiji Restoration, in the closing days of the Tokugawa shogunate, these are times when the Japanese people must unite to stand against a common outside enemy (?). The first thing is to examine the current situation in the EU in relation to entry controls.

2. Freedom of Activity for Lawyers inside the EU


Germany has most difficult bar examination within the EU (Japan's current bar examination was modeled on the German system). It is easiest to become a lawyer in Spain (see below Materials 2). Efforts are underway in the EU in accordance with the Establishment Directive ('the Directive') *1 to liberalize the legal profession within the Union. Under the Directive lawyers who have obtained their qualifications in one member nation can open offices in other member nations using the qualifications gained in their own country and after registration, are now able to act in the same manner as lawyers from the host country in providing legal advice in relation to the law of their own nation, the law of the EU, international law and the law of the host nation (with the proviso that where court appearances are concerned, the host country can require a joint appearance with a lawyer of the host country). Further, it is now acceptable, when a lawyer practicing in a host country has in fact practiced continuously in relation to the laws of the host nation, including those of the EU, for 3 years or more, and has applied to the host country to obtain a qualification to practice as a lawyer of the host country, for the lawyer to display that qualification. *2 For example a Spanish lawyer, A, can go to Germany and, in his or her capacity as a Spanish lawyer, handle legal matters concerning the law of Spain, the law of third countries and the local law of Germany (provided that proof of having handled local or community legal matters within Germany for 3 or more years continuously is required in order to use the title of German lawyer). There has, accordingly, already been a complete liberalization of legal services within the EU, as with goods. Having been through the greatest two wars in history and learnt from the painful first-hand experience of seeing human and physical damage, the destruction of culture and the collapse of Europe, the choice has been made for the great cause of peace, restraining national self-interest. There is not so much as a directive in relation to the local activities of non-local lawyers, and as a result problems of barriers for non-local lawyers remain, however the case of the EU has merit as a reference in relation to local liberalization. How does Japan compare?

3. The Specialist Legal Professions in Japan and Foreign Lawyers (Gaiben)y


(1)Reform of the Special Measures Law Concerning The Handling Of Legal Business By Foreign Lawyers (the Gaiben Law)

The handling of legal matters within Japan by gaiben is already permitted in Japan. The law applicable is the Gaiben Law. The Gaiben Law was enacted in May 1986 and came into force in April of the following year. The current reforms of July 2003 are the third major reforms to the law and are scheduled to be implemented within 2 years. Under these reforms, [1] gaiben can now employ Japanese lawers (as well as, naturally, being able to employ other gaiben). Further, [2] Japanese lawyers and gaiben are now free to open joint enterprises, with the proviso that, in order to prevent a situation when gaiben use Japanese lawyers to actually handle Japanese law, in relation to [1] above, Article 49 of the revised Gaiben Law prohibits the issuing of instructions in the course of business based on an employment relationship to Japanese lawyers or gaiben employed by the gaiben on handling matters outside the employer gaiben's scope of authority and, in relation to [1] and [2] above, gaiben are prohibited from improper participation in legal activities outside the scope authorized for gaiben that is carried out by employed Japanese lawyers and Japanese lawyers who run joint enterprises. Each of these kinds of reforms expands the activity of gaiben within Japan in the direction of liberalization. The current reforms could be said to have reached a watershed of liberalization. This is the way in which the Japanese economy will join the world and, today, as accounting rules are increasingly aligned with international standards, it is difficult to avoid the liberalization of the legal rules that form the upper structure of those rules in the aim of global conformity. What Japan needs to accelerate is the organization and strengthening of qualifications for lawyers within its borders. This means the creation of Japanese lawyers who are a match for gaiben. However, Japan has only 20,264 lawyers. Can we leave resisting foreign pressure to just this handful of lawyers?

(2)Who are Japan's Lawyers?

From a foreigner's perspective and in particular, from an American perspective, it is not only lawyers who comprise the legal professionals in Japan handling legal matters. In Japan the "legal profession" usually means only 3 kinds of practitioners; lawyers, public prosecutors and judges. The Gaiben Law also applies only to lawyers. In America each state holds its own bar examination and those who pass are generally called "lawyers". Around 50,000 of these lawyers pass the examinations each year and, as at 31 December 2002, there were 1,058,662 lawyers in America. American lawyers are obviously involved in law suits and those with legal qualifications are, it can be generally said, always involved in fields in which law fulfills a major function, including the gamut of internal legal affairs for business and the roles of manager, executives, staff in government bodies (bureaucrat, public servant), member of Congress, Mayor and President. Applying that distribution of lawyers to the state of affairs in Japan it is acceptable to treat the ubiquitous graduate of a law faculty as a "lawyer". American lawyers must pass the examination run by the US Patent and Trademark Office in order to handle the filing of patent applications. In Japan it is patent attorneys who handle patent applications and these patent attorneys must pass a patent attorney's examination, which is separate to the bar examination. Japan's lawyers may act as patent attorneys without passing any examination at all (Lawyer's Law Article 3) and can obtain the qualification of patent attorney by registration (Lawyer's Law Article 7). Whilst there are currently around 300 lawyers registered as patent attorneys, apparently around 40 of these actually handle the filing of patent applications (in America around 20,000 lawyers hold qualifications as patent attorneys). Around 99% of Japan's lawyers are persons with an arts background and this is no doubt because mere registration as a patent attorney does not mean they have the technical skills to handle patent application, which is work in the field of the sciences (although the fields of trademark rights and copyright are also related to an arts background). Further, in Japan there are difficult examinations held for our systems of judicial scriveners, who handle real estate and business registration and licensed tax accountants, who handle tax returns. These fields are also in the province of lawyers in America. Japan's lawyers may, of course, carry on the work of a licensed tax accountant (Lawyer's Law Article 3) and may also, without more training, register as licensed tax accountants (Licensed Tax Accountant's Law Article 3) but must pass the judicial scrivener's examination in order to become judicial scriveners (Judicial Scrivener's Law Article 4).

(3)Judicial Scriveners, Patent Attorneys and Licensed Tax Accountants _ Achieving Entry into Trial Work

The current reforms have given these 3 professions rights in a timely manner including the right to act in lawsuits (for licensed tax accountants the right to appear in court to make a statement). Under the revised Judicial Scrivener's Law (Article 3) that came into effect on 1 April 2003, "certified judicial scriveners" who have been certified after completing training carried out by bodies designated by the Minister for Justice were given the authority to act in lawsuits and give legal advice in relation to the same for matters within the jurisdiction of summary courts (presently matters involving sums of less than \900,000, to be raised to \1.4 million yen from April 2004). Patent attorneys who have completed specified training guaranteeing proficiency and passed an examination designed to test the effectiveness of the same, were also given the right to act in cases concerning specific infringements under the revised Patent Attorney's Law (Article 6-2) that came into effect on 1 April 2003. Certified tax accountants were also given the authority to act as advisers in tax-related suits, appearing in court together with the lawyer who acts in the matter to make statements without having to obtain the consent of the court (Certified Tax Accountant's Law Article 2-2). These are rights bestowed by legislation and there is no duty to exercise them, however these reforms mean that these 4 professions now all have the right to be involved in lawsuits in court. In America if one is a person whose qualification enables them to act in a court case then one is a lawyer. The numbers in these 4 professions in Japan are currently, 20,264 lawyers as at November 2003, 17,604 judicial scriveners as at November 2003, 5,458 patent attorneys as at December 2003 and 67,331 certified tax accountants as at November 2003, making a total of around 110,000 persons. The exchanges that will become frequent from here on are those with American lawyers, Chinese lawyers (officially numbering 120,000 but probably more than 3 times that number), Korean lawyers (numbering 6,147; 1,000 new lawyers pass the bar each year in Korea. Korean GDP is no more than 1/9th of Japan's; converted to the Japanese scenario there would be 60,000 lawyers in Japan). We need a rapid expansion in the numbers of lawyers in Japan who will protect Japanese interests (national, economic, social and community interests) to cope with these exchanges. Focusing solely on quality has in many cases led unintentionally to the extermination of a species. From this point onwards we have to deal with lawyers from neighboring countries and with numbers of lawyers in Japan as they are, we will be utterly unable to contend with their offensives. However, if our numbers add in the other professions, we will also need professions proficient in foreign languages. It is the common wish of all the Japanese people to include these people in protecting Japan's national interests, by all means.

(4)The Disparity between the Professions within Japan

The current reality in Japan is that there are various barriers to the integration of the professions. To be specific, each legally qualified group sits a different examination, all of them extremely difficult to pass, with a miniscule pass rate, something like the chances of winning a lottery. This means that there is an overwhelming feeling, even when someone passes, that those coming after them should also have to suffer a difficult examination and there is negativity towards having large numbers of successful candidates. Last year's examination, for instance, was as difficult as ever and this strict pass rate brings about the abuse of entry controls. Further, there is a tendency to brag about the difficulty, high quality and perhaps uniqueness of the examination one sat oneself and to be reluctant to harmonize or unify qualifications. It is just like the situation between feudal domains in the island nation of Japan, but viewed in the present. Nonetheless, liberalization is the trend of the times and it cannot be held back. It is impossible for lawyers alone in Japan to handle the broad range of legal services handled by American lawyers, both in terms of ability and in terms of personnel. The establishment of graduate law schools will not bring a great change in numbers. It follows no doubt that we must take various measures and system reforms aimed at integrating the specialist legal professions within Japan to enable us to bring patent attorneys, judicial scriveners and certified tax accountants together into an integrated international definition of "lawyer".

(5)The Development of the WTO Negotiations on Liberalization of Professional Services

The current WTO negotiations on liberalization of professional services, to be specific the GATS liberalization negotiations, are liberalization negotiations in relation to providers of services connected to trade (155 kinds of services including business services, communications services, building services and financial services), including lawyers services. Of these, according to the table of services covered (MTN, GNS-w-120), "professional services" includes legal, accounting, auditing, bookkeeping, taxation, architectural and engineering services. At present Japan's requests to the WTO liberalization negotiations in respect of legal services include for Japanese people to be able to freely acquire qualifications as lawyers in other countries and for Japanese lawyers to be able to freely provide services in relation to Japanese law and international law in other countries. The requests made of Japan are for gaiben and Japanese lawyers to be able to jointly provide services and in relation to the prerequisites for qualifications as a gaiben. Considerable progress has been made in Japan towards liberalization through the reform of the Gaiben Law. Further, the issue of reciprocal recognition of qualifications between countries is to be a matter for bilateral negotiations between member nations (GATS Article 7). It being too premature to yet discuss the matter of reciprocal recognition of lawyer's qualifications, this has not been negotiated and it is thought that reciprocal recognition will be problematic except in cases between countries with geographical, cultural, historical and economic commonalities, as in the EU (even within America the 51 states each have their own system for lawyers and complete reciprocal recognition of qualifications has not been reached). However, even if the liberalization talks under GATS progress and reciprocal entry as between lawyers is broadly recognized, it will only be "lawyers" who are able to receive the benefits of the relevant liberalization. This means that, as Japan's patent attorneys, judicial scriveners and social insurance and labor affairs agents are not "lawyers" under Japan's current laws, they will be unable to act freely overseas as Japanese lawyers. In contrast, as in foreign countries the professionals who carry out work equivalent to that of these peripheral legal professions in Japan often have qualifications as lawyers (for example in America), they will be able to come to Japan in large numbers and act as gaiben. It follows that Japan should, at the same time as it proposes the liberalization of the legal profession for the GATS liberalization negotiations (seeking reciprocal entry for all the legal professions, not just for liberalization for lawyers), integrate qualifications for lawyers within Japan so that all our legal professionals (or lawyers with a limited sphere of business, such as patent lawyers) can act freely as Japanese lawyers overseas. *3 This should be done because if it is not then even if the liberalization of the legal profession were to be broadly accepted by GATS, then between member nations, the activities of legal professions that do not exist in one's own country (such as certified tax accountant, judicial scrivener, social insurance and labor affairs agent) would not be recognized. From the perspective of the community, which uses these services, each legal profession more than adequately fulfills the role entrusted to it and there are no upper or lower ranks in the professions. Heaven makes no distinctions, not only between people but also between occupations.

 

*1
Directive(EC)98/5(OJL77 14,3.98 P36)

*2
Japan Federation of Bar Associations Committee on Gaiben and the Practice of International Law (ed.) "Chapter 11: The EU", in Kazuhiko Yamagishi, Report on Overseas Survey into Systems of Lawyers [Bengoshi seido ni kansuru kaigai chosa hokokusho] May 2001, pp. 247 ff.

*3
A warning is issued for Japan in the essay by Nozomu Ohara, who acted as Head of the Japan Federation of Bar Associations Committee on Gaiben and the Practice of International Law, "Lessons from Reforming France's System of Lawyers" [Furansu no bengoshi seido kaikaku no kyokun], Issui: Magazine of the Issui Association, Issue 30, 20 March 2003. "Although France should have brought the integration of advocat and conseil juridique to fruition before the entry of foreign lawyers in 1971, this was finally accomplished in 1990 and France is now completely overwhelmed by foreign lawyers (those from outside the EU), which should serve as an object lesson."



Materials 1
Table - Applicants, Examinees and Successful Candidates for National Examinations
Bar Exam 2001 2002 2003
Applicants 39,930 45,622 50,166
Examinees 34,117 41,459 45,372
Increase in Examinees on Previous Year   21.5%up 9.4%up
Successful Candidates 990 1,183 1,170
% of Examinees Successful 2.90% 2.85% 2.58%
 
Patent Attorney's Exam 2001 2002 2003
Applicants 5,693 7,176 8,569
Examinees 5,599 6,720 7,964
Increase in Examinees on Previous Year   20%up 18.5%up
Successful Candidates 315 466 550
% of Examinees Successful 5.63% 6.93% 6.91%
     
Judicial Scriveners Exam 2001 2002 2003
Applicants 23,190 25,146 28,454
Increase in Applicants on Previous Year   9.6%up 11.9%up
Successful Candidates 623 701 790
% of Examinees Successful 2.69% 2.76% 2.78%
 
Final Exam for
CPA's
2001 2002 2003
Examinees 12,073 13,389 14,798
Increase in Examinees on Previous Year   11%up 11%up
Successful Candidates 961 1,148 1,262
% of Examinees Successful 7.96% 8.57% 8.53%
     
Licensed Tax Accountant's Exam (Income Tax Law) 2001 2002 2003
Examinees 3,185 3,217 3,221
Successful Candidates 368 422 391
% of Examinees Successful 11.55% 13.12% 12.13%
 
Licensed Tax Accountant's Exam (Corporations Tax Law) 2001 2002 2003
Examinees 8,277 8,427 8,668
Successful Candidates 922 894 992
% of Examinees Successful 11.14% 10.61% 11.44%
Sources:
Judicial Scriveners - Ministry of Justice website, CPAs -Finance Services Agency website, Certified Tax Accountants - National Tax Administration Agency website.

Materials 2
Table - Comparison of Prerequisites for Obtaining Qualifications as a Lawyer in the EU
Country Prerequisites for Obtaining Qualifications as a Lawyer
No. of Lawyers Law Degree Practical Experience Bar Exam Other
France 40,775 4 years 2 years _ 1 year course (Certificate of Aptitude for the Profession of Advocate)
Belgium 15,432 5 years 3 years _ Lectures and practical program
Italy 140,000 4 years 1 year Yes  
Luxembourg 850 * 2 years Yes * Lawyers undertake a local course after having their foreign law degrees recognised
Germany 116,305 3.5 years
(minimum)
2 years Yes
(Initial and Secondary)
 
Spain 138,367 5 years _ _  
Portugal 33,339 5 years 3 years Yes  
Netherlands 12,200 4 years Not fixed Yes  
Greece 31,300 4 years Yes Yes  
Denmark 4,319 5 years 2 years _ 36 days specialist training course
Sweden 3,821 4.5 years
(minimum)
* _ * Training for judges and public prosecutors only, not required for advocates
Finland 1,588 4.5~6 years Undertaken whilst studying _  
Ireland 8,000 2 years
(Prescribed prerequisites for where non-law degree)
1~2 years _  
England/Wales 156,493 1 year
(Prescribed prerequisites for where non-law degree)
1~2 years _ Barristers undergo a 3 year bar training programme
Austria 4,151 4 years 5 years Yes  
Source: http://elixir.bharm.ac.uk/menu/country/default.htm


 

index back next up

Copyright