法整備支援における「司法改革」再考

―法の実施強化の見地から―

抄録

The purpose of the article is to analyze the gap between the model and the reality in the ‘Judicial Reform’ recently featured in legal assistance programs led by the World Bank and other international institutions. The emphasis is on the question whether such ‘Judicial Reform’ can actually enhance the law implementation, either by way of Criminal Approach (law enforcements via penal procedures), Administrative Approach (those via administrative laws), or Civil Approach (those via civil litigations).

The basic model of ‘Judicial Reform’ provided in the manuals of World Bank is found largely influenced by the common law judicial system. Among all they feature the judicial role of watching over the government ‘Judicial review,’ and accordingly put special emphasis on the independence of judicial administration from the government. However, in actuality, not a few recipient countries are under traditional civil law influence, and such a role of watchdog is often carried out by a specialized ‘administrative court’ rather than the judicial court. When assessed in the view of Administrative Approach, the lesson is that a ‘Judicial Reform’ centering only on the judicial independence cannot directly reach the end of improved law enforcement.

Another aspect of the ‘Judicial Reform’ model is its less concern over the enhancement of the quality of law application techniques by judges. As it is tainted by the American Unitarian system of judge nomination among experienced lawyers, it pays less attention to the quality of judicial training programs than that in the career-up system of traditional civil law judicial nomination. Rather, the model tend to promote alternative dispute resolutions (ADR) than the improvement of traditional litigation. ADR may respond to the concern of international investors for quick and flexible dispute resolutions, but might end up with either the avoidance of local judicial process or otherwise the loosened law application by the judiciary, which might go against the need of enhanced law implementation via Civil Approach and/or Criminal Approach.

In order to fill the gaps between model and reality of ‘Judicial Reform’, a continuous support from Japan would be very much important, especially making most of its unique experience since WWII to have implanted the common law-style judicial system within its basic civil law basis.