Gaps and bridges between the Japanese

and American Legal Systems

The various legal systems in place around the world share certain features,
but very few (perhaps none) are exactly alike. Indeed, as each system
reflects the needs, cultures and traditions of the nation it represents, the
worlds legal systems are as variable as the people themselves. Therefore,
when it comes to Japan and the United States, there are many differences
between each countrys legal system (although the gap is closing somewhat
as globalization progresses). The main differences stem from the fact that
one system is based on common law, and the other on civil law.1
1.The U.S. Legal System: Backround
The U.S. Constitution establishes a federal system of government. The
constitution gives specific powers to the federal (national) government. All
power not delegated to the federal government remains with the states.
Each of the 50 states has its own state constitution, governmental structure,
and legal codes.
The U.S. Constitution establishes the judicial branch of the federal
government and specifies the authority of the federal courts. Federal courts
have exclusive jurisdiction only over certain types of cases, such as
cases involving federal laws, controversies between states, and cases
involving foreign governments. In certain other areas federal courts share
jurisdiction with state courts. For example, both federal and state courts may
decide cases involving parties who live in different states. State courts have
exclusive jurisdiction over the vast majority of cases.
The Constitution vests in Congress thepower to pass legislation. A
proposal considered by Congress is called a bill.If a majority of each house
of Congress two-thirds should the President veto it votes to adopt a
bill, it becomes law.2
1 https://onlinelaw.wustl.edu/blog/major-differences-between-the-japanese-andamerican-legal-systems/
2 http://usa.usembassy.de/etexts/gov/outlinelegalsystem.pdf

Parties have a right to trial by jury in all criminal and most civil cases. A jury
usually consists of a panel of 12 citizens who hear the evidence and apply
the law stated by the judge to reach a decision based on the facts as
the jury has determined them from the evidence at trial. However, most
legal disputes in the United States are resolved before a case reaches a jury.
They are resolved by legal motion or settlement, not by trial.3
2.Introduction to Japan's Legal System
In 1868, following the feudal regime, the modernization of Japan (Meiji Restoration) started.
The Meiji reformers were strongly influenced by legal theories that had evolved in Prussia.
France also had an influence on certain areas of law. The first modern constitution and basic
codes were enacted following Prussian and French models. The Japanese legal system is based
on the civil law system. After World War II, the Constitution was replaced, and many other laws
were newly enacted or amended. These new laws were heavily influenced by United States
through the Allied Occupation. The principle of judicial review was introduced to Japan from
the United States. Overall, the Japanese legal system is closer to the European system. But U.S.
influence and Japans traditional values have modified the system.4
The National Diet is the sole law-making organ of the State. However, it does not mean the Diet
members draft bills. Many draft bills come from government agencies, then are submitted to the
Diet through the Cabinet. When a member wants to submit a bill to the Diet, he cannot do so by
himself. Certain number of co-sponsors is required to submit a bill. For example, in the case of a
bill affecting the budget, fifty or more co-sponsors of the House of Representatives are required.5
The whole judicial power is vested in the Supreme Court and lower courts (High Courts, District
Courts, Family Courts and Summary Courts). Independence of judiciary is guaranteed by the
Constitution. Most judges are virtually life-time employees of a national governmental
bureaucracy: the judiciary. 6
3. Japanese and American Legal Systems

3 http://www.fjc.gov/public/pdf.nsf/lookup/U.S._Legal_System_English07.pdf/
$file/U.S._Legal_System_English07.pdf

4 http://www.loc.gov/law/help/legal-research-guide/japan.php

5 Ibidem;

Legal systems around the world can generally be grouped into two main types: common law and
civil law. For those who do not know, in common law countries, the main source of authority is
case law in the form of judicial opinions, whereas in civil law countries, codified laws
predominate. Moreover, in common law countries, judges act as arbitrators, presiding over
lawyer-led proceedings and fashioning appropriate remedies somewhat flexibly. On the other
hand, in civil law countries, judges have a more central role, investigating facts, examining
witnesses and applying codified law to their findings in a somewhat stricter manner than in
common law countries.7
Japan is primarily a civil law country, and the United States is primarily a common law country.
These distinctions, however, are not perfect. In the United States, codified law can be found at all
jurisdictional levels, and may control the outcome of a dispute. And in Japan, case law precedent
offers non-binding guidance that may, in some cases, be persuasive, and may be relied upon if
not in conflict with code.8
Perhaps what is most interesting about the differences between the two legal systems is their
evolution. While the U.S. legal system is mostly inherited from the English legal tradition,
Japans is a mixture of several main influences. In the late 1800s, early German civil code was
imported by Japan, along with elements of the French civil code as well. After World War II,
however, a number of American borrowings appeared, such as a constitution and laws regarding
criminal procedure, labor law and corporate law. In more recent years, Japans legal system was
updated, including revisions to codes on topics such as civil procedure and bankruptcy.9
Compared to the United States, Japan has far fewer lawyers per person (approximately 1 in 4,000
versus 1 in 250). These lawyers are joined by large numbers of other functionaries, however.
These include: judicial scriveners(who assist with real estate and litigation documentation);
administrative scriveners(who are tasked with legal document drafting); in-house legal
professionals(who may have specialized in legal topics during their undergraduate education and
who assist with contract drafting); Civil law notaries(who prepare official documentation or
notarial deeds which authenticate private documents).10
6 Ibidem;
7 https://onlinelaw.wustl.edu/blog/major-differences-between-the-japanese-andamerican-legal-systems/
8 https://onlinelaw.wustl.edu/blog/major-differences-between-the-japanese-and-americanlegal-systems/

9 Ibidem;

The role of a lawyer in each country is different, although the amount of overlap is increasing. In
Japan, lawyers primarily serve as litigators, assisting with court cases, although not having as
prominent a role in the proceedings as American lawyers. In addition, in Japan emphasis is
placed on written briefs, as opposed to oral argument. In contrast, in the U.S., lawyers take the
lead with oral presentations, witness examination and other tasks that may be allocated to judges
or others in Japan.
Fifteen years ago, the nation kicked off a plan to double the low number of lawyers. Japanese
officials thought they could breathe dynamism into society by mimicking the Western legal
system, where courts are more involved in settling issues such as consumer safety and corporate
malfeasance. The plan was duly put into practice and dozens of law schools offering three-year
courses opened. The number of newly minted private lawyers each year doubled to about 2,000 a
year, to a total of nearly 37,000 now, compared with just over 17,000 in 2000. Even with the new
additions, Japan still has far fewer lawyers per capita than the U.S. and major European nations.11

In Japan, lawsuits are generally avoided for cultural reasons (but certain disputes such as patent
suits are on the rise), while the United States is known for having an especially litigious
populace. In another point of difference for lawyers, bar passage rates in Japan are quite low
as low as 25 percent in recent years far below those of certain majority-pass jurisdictions in
the United States.Notwithstanding the difficulty of navigating the differences between these
systems, a number of U.S.-based international law firms have opened successful offices in Japan
(e.g. Morrison Foerster). And as the requirements of international business clients continue to
create demand for lawyers or lawyer teams that are proficient in both Japanese and American
law, further collaborative efforts will likely be seen in the legal industry as time progresses.12
From 2009, various improvements and reforms on the criminal justice system have been
implemented such as the significant expansion of the scope of the court-appointed attorney
system for suspects, enhancement of the disclosure of evidence, and realization of active trials by
enhancing oral argument and direct participation. In addition, various other reforms are being
implemented, including reforms of the administrative litigation system such as enlargement of
standing, reforms of the intellectual property system such as the establishment of the Intellectual
Property High Court, reform of the system concerning judges such as appointment and
10 Ibidem;
11 http://www.wsj.com/articles/japanese-lawyers-problem-too-few-cases-1459671069

12 https://onlinelaw.wustl.edu/blog/major-differences-between-the-japanese-and-americanlegal-systems/

evaluation of judges, establishment of a system where judges and public prosecutors experience
other professions, liberalization of profit-earning activities of attorneys, deregulation of legal
fees, reform of the attorney system including improvement of the disciplinary system, and
establishment of the labor adjudication system.13

Jude Maria
Anul I , grupa V

13 http://www.nichibenren.or.jp/en/about/judicial_system/justice_system_reform.html