Жапон құқықтық жүйесінің тарихы мен ерекшеліктері

Legal system of Japan

The law of Japan refers to the legal system in Japan, which is primarily based on legal codes and statutes, with precedents also playing an important role. Japan has a civil law legal system with six legal codes, which were greatly influenced by Germany, to a lesser extent by France, and also adapted to Japanese circumstances. The Japanese Constitution enacted after World War II is the supreme law in Japan. An independent judiciary has the power to review laws and government acts for constitutionality.

The early laws of Japan are believed to have been heavily influenced by Chinese law. Little is known about Japanese law prior to the seventh century, when the Ritsuryō was developed and codified. Before Chinese characters were adopted and adapted by the Japanese, the Japanese had no known writing system with which to record their history. Chinese characters were known to the Japanese in earlier centuries, but the process of assimilation of these characters into their indigenous language system took place in the third century. This was due to the willingness of the Japanese to borrow aspects of the culture of continental civilisations, which was achieved mainly via adjacent countries such as the Korean kingdoms rather than directly from the Chinese mainland empires. Two of the most significant systems of human philosophy and religion, Confucianism (China) and Buddhism (India), were officially transplanted in 284–285 and 522 AD respectively, and became deeply acculturated into indigenous Japanese thought and ethics. David and Zweigert and Kotz argue that the old Chinese doctrines of Confucius, which emphasize social/group/community harmony rather than individual interests, have been very influential in the Japanese society, with the consequence that individuals tend to avoid litigation in favour of compromise and conciliation. In addition, it is presently believed that various arts and techniques in many fields of production, such as agriculture, weaving, pottery, building construction, medicine and tanning, were brought to Japan by immigrants by way of the Korean peninsula. These immigrants, wherever they came from, had significant influence on the development of Japan. It is theorized by some that the flow of immigrants was accelerated by both internal and external circumstances. The external factors were the continuing political instability and turmoil in Korea, as well as the struggle for central hegemony amongst the Chinese dynasties, kingdoms, warlords, invasions and other quarrels. These disturbances produced a large number of refugees who were exiled or forced to escape from their homelands. Immigrants to Japan may have included privileged classes, such as experienced officials and excellent technicians who were hired in the Japanese court, and were included in the official rank system which had been introduced by the immigrants themselves. It is conceivable – but unknown – that other legal institutions were also introduced, although partially rather than systematically, and this was probably the first transplantation of foreign law to Japan. During these periods, Japanese law was unwritten and immature, and thus was far from comprising any official legal system. Nonetheless, Japanese society could not have functioned without some sort of law, however unofficial. Glimpses of the law regulating people's social lives may be guessed at by considering the few contemporary general descriptions in Chinese historical books. The most noted of these is The Record on the Men of Wa, which was found in the Wei History, describing the Japanese state called Yamatai (or Yamato) ruled by the Queen Himiko in the second and third centuries. According to this account, Japanese indigenous law was based on the clan system, with each clan forming a collective unit of Japanese society. A clan comprised extended families and was controlled by its chief, who protected the rights of the members and enforced their duties with occasional punishments for crimes. The law of the court organised the clan chiefs into an effective power structure, in order to control the whole of society through the clan system. The form of these laws is not clearly known, but they may be characterised as indigenous and unofficial, as official power can rarely be identified. In this period, a more powerful polity and a more developed legal system than the unofficial clan law of the struggling clan chiefs was required effectively to govern the society as a whole. Yamatai must have been the first central government which succeeded in securing the required power through the leadership of Queen Himiko, who was reputed to be a shaman. This leads to the assertion that Yamatai had its own primitive system of law, perhaps court law, which enabled it to maintain government over competing clan laws. As a result, the whole legal system formed a primitive legal pluralism of court law and clan law. It can also be asserted that this whole legal system was ideologically founded on the indigenous postulate which adhered to the shamanistic religio political belief in polytheistic gods and which was called kami and later developed into Shintoism. Two qualifications can be added to these assertions. First, some Korean law must have been transplanted, albeit unsystematically; this can be seen by the rank system in court law and the local customs among settled immigrants. Second, official law was not clearly distinguished from unofficial law; this was due to the lack of written formalities, although court law was gradually emerging into a formal state law as far as central government was concerned. For these reasons, it cannot be denied that a primitive legal pluralism had developed based on court and clan law, partially with Korean law and overwhelmingly with indigenous law. These traits of legal pluralism, however primitive, were the prototype of the Japanese legal system which developed in later periods into more organised legal pluralisms.

In 604, Prince Shotoku established the Seventeenth article Constitution, which differed from modern constitutions in that it was also moral code for the bureaucracy and aristocracy. While it was influenced by Buddhism, it also showed a desire to establish a political system centered on the emperor, with the help of a coalition of noble families. Nevertheless, there are doubts that the document was fabricated later. Japan began to dispatch envoys to China's Sui Dynasty in 607. Later, in 630, the first Japanese envoy to the Tang Dynasty was dispatched. The envoys learned of Tang Dynasty's laws, as a mechanism to support China's centralized state. Based on the Tang code, various systems of law, known as the Ritsuryō (律令), were enacted in Japan, especially during the Taika Reform. Ritsu (律) is the equivalent of today's criminal law, while ryō (令) provides for administrative organization, taxation, and corvée (the people's labor obligations), similar to today's administrative law. Other provisions correspond to modern family law and procedural law. Ritsuryō was strongly influenced by Confucian ethics. Unlike Roman law, there was no concept of private law and there was no direct mentioning of contracts and other private law concepts. One major reform on the law was the Taihō (Great Law) Code, promulgated in 702. and the principle of kenka ryōseibai (喧嘩両成敗), which punished both sides involved in brawls. In the Edo period (1603–1868), the Tokugawa shogunate established the bakuhan taisei (幕藩体制), a feudal political system. The shogunate also promulgated laws and collection of precedents, such as the Laws for the Military Houses (武家諸法度 Buke shohatto) and the Kujikata Osadamegaki (公事方御定書). It also issued the Laws for the Imperial and Court Officials (禁中並公家諸法度 kinchū narabini kuge shohatto), which set out the relationship between the shogunate, the imperial family and the kuge, and the Laws on Religious Establishments (寺院諸法度 jiin shohatto). Crimes punished include forgery, harboring runaway servants, abandonment of infants, adultery, gambling, theft, receiving stolen goods, kidnapping, blackmailing, arson, killing and wounding. At the beginning of the Meiji Era (1868–1912), the Japanese populace and politicians quickly accepted the need to import western legal system as part of the modernization effort, leading to a rather smooth transition in law. Japan's Meiji Constitution emulated the German constitution with broad imperial powers; British and French systems were considered but were abandoned because they were seen as too liberal and democratic. With a new government and a new constitution, Japan began to systematically reforming its legal system. Chinese style criminal codes (Ming and Qing codes) and past Japanese codes (Ritsuryo) were initially considered as models but abandoned. Court cases and subsequent revisions of the code also lessened the friction between the new laws and established social practice. Voting rights was never extended to the colonies, like Korea, although colonial subjects who moved to Japan could vote after the 1925 reforms. However, cabinets based on party politics were powerless against growing interference by the Japanese military. A series of rebellions and coups weakened the Diet, leading to military rule by 1936. Major reforms on gender equality, education, democratization, economic reform and land reform were introduced. While historical aspects remain active in the present, Japanese law also represents a dynamic system that has undergone major reforms and changes in the past two decades as well.

Ministries and administrative agencies also issue circulars (tsutatsu), which are regarded as administrative rules rather than legislation. The Law on Administrative Procedure prohibits retaliation in cases where persons do not follow government administrative guidances and some ministries attempted to codify them in cabinet orders and ministerial ordinances. Local authorities may issue local regulations under Art. 94 of the Constitution and Law on Local Self Administration, as long as they are not contrary to law. Judges seriously consider a series of similar precedents, especially any pertinent Supreme Court decisions, thus making understanding of precedent essential to practice. In addition, Japanese judges are generally career judges whose promotion and transfer can be greatly affected by the Supreme Court. Scholars and practising lawyers often comment on judicial judgments, which can then affect future judicial reasoning. The Civil Code of Japan (民法 Minpō) was created in 1896. It was heavily influenced by the 1887 draft of the German Civil Code, and to a lesser extent the French Civil Code. The code is divided into five books:

Book One is the General Part (総則), which includes basic rules and definitions of Japanese civil law, such as the capacity of natural and legal persons, juridical acts, and agency. Book Two is entitled Real Rights (物権) and covers property and security rights over real property. Book Three is the Law of Obligations (債権). Like in other civil law countries, tort law is considered one source from which an obligation emerges, together with unjust enrichment, and contract law. Book Four deals with family relations (親族), including marriage and guardianship. Book Five covers inheritance (相続), including wills and succession. After World War II, sections dealing with family law and succession (books four and five) were fully revised during the occupation and brought closer to European civil law. Special laws on torts such as Nuclear Damage (1961), Pollution (1971) and Traffic Accidents (1955) were also enacted to supplement the Civil Code. The Commercial Code is considered a specialized law, meaning it take precedence over the Civil Code if both laws apply. have such private rights, which enable them to inherit property and claim damages in tort cases. A contract requires the coinciding of the minds, with an offer and an acceptance. Courts sometimes prevent the termination or non renewal of contracts when there is a strong reliance interest at stake, citing the duty to act in good faith. Article 709 of the Civil Code states: "A person who intentionally or negligently violates the rights of others shall be liable for the loss caused by the act." Statutes outside the Civil Code also regulate specific types of torts, such as the Law on the Compensation of Losses arising from Car Accidents enacted in 1955, the 1973 Law on the Remedies of Harm Caused to Human Health by Pollution, or the 1994 Law on Product Liability. Takao Tanase posited that the calculated structuring of governmental and legal processes, not a cultural propensity toward harmonious social relations, accounted for the persistently low litigation rate in Japan. In Japan in 1986, fewer than 1% of automobile accidents involving death or an injury resulted in litigation, compared to 21.5% in the United States. The litigation rate was low, Tanase said, because Japan provides non litigious methods of assessing fault, advising victims, determining compensation, and ensuring payment. Real rights (物権) concern the rights of a person over a thing, a right in rem rather than in personam.

Basics of the Japanese employment law are established in the Japanese Constitution, which was framed in large part with an eye toward the U. S. Constitution. As such, employment laws in Japan are similar to those in the U. S., and can be divided into three general categories: labor standards, labor relations, and trade unions. The 'employment' or 'service' contract is recognised under article 623 of the Japanese Civil Code. While the term "labour contract" is not defined under the Labor Standards Act (LSA), to all intents and purposes the courts regard the two as one and the same, and the terms "labour contract" and "employment contract" as interchangeable. It is through the civil procedure, therefore, that the boundaries of the individual contract have largely been defined by means of a comprehensive body of case law. The LSA also requires the employer to consult with the union, if any, or with a person who represents a majority of the employees in drafting the work rules (LSA s. 89). A copy of the work rules must also be submitted to the Labour Standards Office (LSA s. 90).

Before the Meiji period (1867–1912), the powers of the Tokugawa shogunate, or the judges they appointed, possessed a large amount of discretion, which often resulted in the abuse of power. Capital punishment was the main measure of dealing with offenders in the criminal justice system. Under feudalism, authorities frequently used the death penalty against political rivals. After the Meiji Restoration, as Western culture was introduced, the government established new laws reflecting a gradually modernizing Japanese society. The first criminal code after the Restoration was the Shinritsu Koryo (新律綱領) of 1869, primarily influenced by the Chinese Ming and Qing codes and the law of the Tokugawa Shogunate. However, new criminal law and prison laws were passed in an effort to bring Japan into line with Western countries. A 1880 criminal code was primarily inspired on French law, while the current code, enacted in 1907 was primarily based on German law. Based on the new Constitution after World War II, the Criminal Code was radically changed to reflect constitutional rights such as free expression and gender equality. Unfortunately, immediately following this innovation, a series of cases resulted in a miscarriage of justice partly because the police were not accustomed to the new system. In 1926, a governmental advisory commission drafted forty principles to be included in the revision of the penal code that a few years later were used as the basis of a provisional "Revised Penal Code of Japan", published in 1941. While this document itself does not remain as the present form of the penal code of Japan it was largely influential to its construction and has informed the judicial interpretation of the modern code. In 2017, for example, its intentional homicide rate was 0.2 per 100,000 people, compared to 5.3 per 100,000 in the United States and 1.2 in the United Kingdom. In 2018, crime fell to a new low since World War II, declining for the 16th consecutive year.

Japan's court system is divided into four basic tiers, 438 Summary Courts, one District Court in each prefecture, eight High Courts and the Supreme Court. There is also one Family Court tied to each District Court.

Rights of the accused. The Constitution is the source of individual rights in the setting of criminal investigations and trial. Article 31 declares, "No person shall be deprived of life or liberty, nor shall any other penalty be imposed, except according to procedure established by law", which is regarded as the principle of due process. Article 33 covers protection from illegal arrest: "no person shall be arrested except upon a warrant issued by a competent judicial official, which specifies the offense with which a person is charged". Article 34 protects persons from illegal confinement and Article 35 protects persons from illegal deprivation of residence and property. Provisions directly governing trial proceedings provide that admissions of testimony must be compelling. There are also rights guaranteeing a speedy and public trial, full opportunity to examine all witnesses, and legal counsel by lawyers employed by the state if the accused cannot afford a private lawyer. In addition, a person cannot incur criminal liability if the act was lawful at the time it was committed, and cannot be subject to conviction for the same crime twice (double jeopardy). Assistance to the accused. The state must provide legal counsel if the defendant cannot afford a private lawyer.

Preparatory procedures for bringing a suspect to trial. Procedure in criminal prosecutions is uniform throughout Japan, and based primarily on the 1948 Code of Criminal Procedure and the 1949 Rules of Criminal Procedure under the Constitutional Law, reflecting Anglo American legal concepts in contexts important to the protection of human rights. When police investigation is completed, police must refer the matter, including the evidentiary data, immediately to a public prosecutor. If the matter involves confining a suspect, they must refer the case to the public prosecutor within 48 hours of the suspect's arrest after which a determination is made concerning pre trial detention. The jury system has, for all practical purposes, been suspended. There are no procedures equivalent to a guilty plea. That is, even if the defendant acknowledges guilt, the prosecutor must submit evidence to establish guilt. Further, since the Japanese procedural system does not include pre sentence investigations and reports by probation officers, evidentiary data bearing on the sentencing must be presented by the parties to the case, to be supplemented by the court's own inquiries. In this context, the court is the exclusive trier of fact, which consists of the physical evidence and, when that is the case, the confession of the accused as well as any witnesses testimony. Official who conducts prosecution. Only prosecutors are empowered to institute the prosecution of a criminal case and to direct the enforcement of criminal sentences. They have a large amount of discretion in controlling and directing criminal cases. (Japanese Criminal Procedure Code, Art.248). Accordingly, they have the power to suspend prosecution even when they can prove the offender committed a crime. They can also investigate all categories of criminal cases on their own initiative, without assistance from the police and other law enforcement agencies. Special cases, such as bribery involving highly placed government officials or corporate crimes involving a breach of trust by executives are often investigated by prosecutors. The increasing frequency of the occurrence of these special cases have emphasized the importance of the prosecutor's investigative powers. Under the Supreme Public Prosecution Office are 8 higher offices, 50 district offices and 810 local offices. As of 1990, there were about 1,100 prosecutors and 900 assistant public officers, who are all appointed by the central government. Proportion of prosecuted cases going to trial. Japan has a low rate of acquittals and a high rate of convictions. In 1988, there were 57,790 accused persons tried in first instance courts, of which only 50 (0.01%) were found not guilty. Defense lawyers generally prefer the introduction of mitigating circumstantial evidence rather than arguing with the prosecutor. In addition, both practicing lawyers and judges regard criminal cases as being less attractive than other types of cases. Pre trial incarceration conditions. If the public prosecutor believes that continued detention of the accused is needed, he or she must apply to a judge for a warrant of detention. This warrant must be applied for within 24 hours after police transfer to the prosecutor, or a maximum of 72 hours from the time of arrest. If reasonable grounds to detain a suspect exist, the judge must promptly issue a warrant or order of detention at a maximum of 10 days before prosecution is instituted. Reasonable grounds are determined by three criteria: 1) whether the suspect has a fixed dwelling, 2) whether the suspect might destroy evidence and; 3) whether he might flee the jurisdiction.