The Sociology of Law

The Contemporary Type Litigations and Their Functions

Kahei Rokumoto

1991 Volume 1991 Issue 43 Pages 2-12,233
Published: April 30, 1991
Released on J-STAGE: January 15, 2009

DOIhttps://doi.org/10.11387/jsl1951.1991.2

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This paper proposes a new concept of "contemporary type litigation" (Gendaigata-soshou) from the perspective of legal sociology, distinct from that of legal dogmatics. After a brief survey of various usages of the term in the recent lierature, the author puts forward the concept of contemporary type litigation defined as one that calls for, beside the resolution of a specific dispute, a change in normative structure itself, whether at the level of formal of formal legal rules and institutions, at the lebel of organisational practices, or at the level of social norms and customs governing everyday social relations. This definition widens the extension of the term somewhat so as to include not only thoselitigations involving policy issues and a large number of organised plaintiffs (e. g. airport noise suits and SMON suit), but also those filked by individual plaintiffs concerning, for example, babysitting arrangement between neighbours, hair regulation of school children, doctor's malpractice, etc. Thus, the author proposes to subdivide the concept into three subcategories: (1) the human relations suit; (2) the large scale damage suit; and (3) the public policy suit, corresponding to the differsnt levels of nomative structure called into question. Behind these numerous litigations of novel type, there is, according to the author, an underlying cry for and an impetus toward a social order based on the principle of individual autonomy.

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Negotiation and Wakai-ken-Benron

Special Conference in Japanese Civil Procedure

Shozo Ota

1991 Volume 1991 Issue 43 Pages 13-21,233
Published: April 30, 1991
Released on J-STAGE: January 15, 2009

DOIhttps://doi.org/10.11387/jsl1951.1991.13

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1. Negotion Behavior of Lawyers
I sent questionnaires to 118 lawyers who graduated from Nagoya University Law School and are living in Tokai area. The aim of the study is to see how Japanese lawyers negotionate in civil cases; do they negotiate competitively or cooperatively; are their negotiation behaviors effective or countereffective? The method was borrowed from William [1983] in order to make the results comparable to the U.S. study. The results are that majority of the lawyers negotiate cooperatiely and that cooperative lawyers are effective. Most of the results are similar to the U.S. study by Prof. William.
2. "Wakai-ken-Benron:" A Special Conference
Wakai-ken-Benron (Benron-ken-Wakai) is a special round-table conference held in judge's chamber, which often result in settlement. I intervirwed judges and court clerks. I made a docket research at the Nagoya District Court in addition to the questionnaire research to lawyers (cf. 1. above).
The main purpose of Wakai-ken-Benron is, as expected, to promote settlement. Although some judges claim that it is to prepare for Benron (Verhandlung, pleading), many judges at the Nagoya District Court say that it is de gacto settlement conferebce. Parties' statement at the statutory settlement conference cannot be used in judgment but those at Wakai-ken-Benron can be used. Many lawyers and judges say that actually promotes settlrment and that it leads to more flexible resolution of disputes. Many of them do not thint that it leads to fairer resolution.
The case goes back to Benron when the parties do not reach agreement. The same judge who presifef Wakai-ken-Benron renders judgment. Many lawyers do not feel any problem with it, while some lawyers think it inappropriate. Nojudge finds it inadequate. In practice, judge asks both parties to file briefs or produce evidence de novo after going back to Benron if s/he thinks the statement at Wakai-ken-Benron contains new important facts or evidence.
As to technique for promoting settlement. Many lawyers want to get information from jufge at Wakai-ken-Benron, i.e., judge's legal and factual evaluation of the case. They want judge to tell the evaluation ex parte. Caucus is often used in Wakai-ken-Benron.

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On the Process of Small Claim Litigation without Lawyers

Yoshitaka Wada

1991 Volume 1991 Issue 43 Pages 22-30,232
Published: April 30, 1991
Released on J-STAGE: January 15, 2009

DOIhttps://doi.org/10.11387/jsl1951.1991.22

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This paper examines the conditions on which small Claim litigation process canbe more favorably accepted by lay litigants. The point is that, beyond the role of legal decision-malcer, judges should give emotional support lay litrgauts to help them establish theiv own strnctnred idea of their problems. In order to make this judge's newrole workable, followiny alternative perceptions on litigation, lawyers and small claim cases must be emphasized:
1) litigation as a process of transformation of each litigants idea of his problem,
2) judge as dispnte processor or negotiator (not as "legal" profession),
3) small claim case as a complex which consists of emotioual, societal and legal problems.

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Organizer's Comment

Tsuneo Ikeda

1991 Volume 1991 Issue 43 Pages 31-36
Published: April 30, 1991
Released on J-STAGE: January 15, 2009

DOIhttps://doi.org/10.11387/jsl1951.1991.31

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A Study of Recent Personal Administration of Judges in Japan

Kuniaki Shioya

1991 Volume 1991 Issue 43 Pages 37-45
Published: April 30, 1991
Released on J-STAGE: January 15, 2009

DOIhttps://doi.org/10.11387/jsl1951.1991.37

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A Study on the Interrelationship between Judge's Career and His Judgement

Eiji Tsukahara

1991 Volume 1991 Issue 43 Pages 46-54
Published: April 30, 1991
Released on J-STAGE: January 15, 2009

DOIhttps://doi.org/10.11387/jsl1951.1991.46

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Conference of Judges and Judicial Behavior

Jiro Yukawa

1991 Volume 1991 Issue 43 Pages 55-61,231
Published: April 30, 1991
Released on J-STAGE: January 15, 2009

DOIhttps://doi.org/10.11387/jsl1951.1991.55

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In Japan the judicial power centers in the General Secritariat of the Supreme Court, and it holds "conference of judges" in each litigation field periodically every year, where judges conferes on concrete, individual issues of litigaon and finally the General Sec ritariat of the Supreme Court puts together all the discussion, declaring its own view.
I fear "conference of judges" is used to control jurgement and trial by General Secritariat of the Supreme Court, especially in and after the latter half of 1970's. I will inspect "conference of judges" in administrative litigation, which has influenced judgement of some cases.

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Organizer's Comment

Setsuo Miyazawa

1991 Volume 1991 Issue 43 Pages 62-67
Published: April 30, 1991
Released on J-STAGE: January 15, 2009

DOIhttps://doi.org/10.11387/jsl1951.1991.62

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Justizreform und Bürgerbeteiligung

Shozaburo Yoshino

1991 Volume 1991 Issue 43 Pages 68-75
Published: April 30, 1991
Released on J-STAGE: January 15, 2009

DOIhttps://doi.org/10.11387/jsl1951.1991.68

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Role of Lowyers in Judicial Administration

Takao Tanase

1991 Volume 1991 Issue 43 Pages 76-83
Published: April 30, 1991
Released on J-STAGE: January 15, 2009

DOIhttps://doi.org/10.11387/jsl1951.1991.76

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The Problem to be Solved within the Criminal Procedure

Nobuyoshi Araki

1991 Volume 1991 Issue 43 Pages 84-90,231
Published: April 30, 1991
Released on J-STAGE: January 15, 2009

DOIhttps://doi.org/10.11387/jsl1951.1991.84

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Severe mistrials have been discovered recently. At least the accused asserting not guilty, should not be detained at the Police Detention Cell. They should be detained at the Detention Center, managed by the Ministry of Justice. To afford every arrested accused the legal advice, and to make the primary chek if he is guily or not guilty, the Public Defender System should be esyablied.

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People's Participation into Judiciary

Measures to Introduce New Jury System into Japan

Sachio Shimomura

1991 Volume 1991 Issue 43 Pages 91-98,230
Published: April 30, 1991
Released on J-STAGE: January 15, 2009

DOIhttps://doi.org/10.11387/jsl1951.1991.91

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1. Reasons to Begin the Criminal Jury Trial
2. Surmounting the So-called Japanese Nationality Argument
3. Procedures to Introduce the Jury System
4. Models of the Criminal Jury System
5. Several Crucial Issues
6. Necessity to Renovate Criminal Procedure
7. Necessity to Examine the Mixed Court From Co, paratine point of view

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Organizer's Comment: Conditions for Realizing Hoso-Ichigen-Seido

Takashi Maruta

1991 Volume 1991 Issue 43 Pages 99-104,230
Published: April 30, 1991
Released on J-STAGE: January 15, 2009

DOIhttps://doi.org/10.11387/jsl1951.1991.99

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This symposium (Part 3: Renovation of Judiciary and Cicil Participation into Judicial Process) tries to prescribe for the symptoms of the contemporary judiary analyzed by another sympdsia (Parts 1 & 2). The organizer of Part 3 symposium nriefly raises issues how to recruit judges especially from attorneys and legal scjolars (Hoso-Ichigen-Seido). The necessity of increasing numbers of attorneys involving legal scholars in practice is emphasized as indispensable conditions to realize more democratic judiciary in Japan.

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[title in Japanese]

[in Japanese], [in Japanese], [in Japanese], [in Japanese], [in Japane ...

1991 Volume 1991 Issue 43 Pages 105-147
Published: April 30, 1991
Released on J-STAGE: January 15, 2009

DOIhttps://doi.org/10.11387/jsl1951.1991.105

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The "Concessionization" Strategy for Adoption of Western Law in Chinese Mainland

Wei-dong Ji

1991 Volume 1991 Issue 43 Pages 148-154,229
Published: April 30, 1991
Released on J-STAGE: January 15, 2009

DOIhttps://doi.org/10.11387/jsl1951.1991.148

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Because Chinese law which lack the private law mentality is so different from western law, the adoption of the later in Chinese society may be most difficult. In the first thirty years and more of the twentieth century, China had tried at least twice to import western law. The first attempt was the Constitutional Reform at the end of the Qing Dynasty. The second attempt was the Codification in the Republie of China. But they all came to a pfematufe end. Now the third attempt has been carrued out since 1979. Its unique style can be diecribed as that (1) the adoption of foreign law in laws concerning economic affairs goes ahead of domestoc laws, and (2) legal practitioners play an important role in extending the influence of rexeived foreign law. Here the domain of laws concerning foreign economic affairs just like a "concession" for transplanting foreign laws. By this way the legal reform may be counted on progress step by step in due order. In other words, we can say that the "concessization" strategy is not adoptive but adaptive.

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Legal Practice for Corporate Clients in Tokyo

An Empirical Study

Ryo Hamano

1991 Volume 1991 Issue 43 Pages 155-158,229
Published: April 30, 1991
Released on J-STAGE: January 15, 2009

DOIhttps://doi.org/10.11387/jsl1951.1991.155

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This study sought to obtain empirical data on the state of legal practice for corporate clients in Tokyo. In 1988 a questionnaire containing seventeen questione was sent to a random sample of 500 praticing attorneys in Tokyo; 185 questionnaires were returned with valid answers to most of the questions ask ed.
Some of the findings of the survey are as follows;
(1) Cosiderably more attorneys in Tokyo are trying to handing to handle such matters as company law or economic law cases, intellectual property matters and non-contentious work, which generally have not been an important source of business for Japanese laeyers.
(2) Most respondents consider the size of their own firm to be smaller than is adequate.
(3) 17% of attoreys habe had business contact with gaikokuho jimu bengoshi offices, whose presence in Tokyo has made 7% of respondents think they have to take some measures to rationalize their owe practice.

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The Limits of Interventionaistic Law and Its Proceduralization

Hideki Kashizawa

1991 Volume 1991 Issue 43 Pages 159-164,228
Published: April 30, 1991
Released on J-STAGE: January 15, 2009

DOIhttps://doi.org/10.11387/jsl1951.1991.159

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In the welfare state in transition, we shouss the 'interventionalistic law' rather thab the welfare state itself. This interventionalistic law, on the one hand, abstracts the people to categories of 'clients', and on the other hand, strains relations between notmetive elements and cognitive elements of legal system.
The theories which succeed in analizing these problems and suggesting the tesolutions are the system theory (autopoiesis system theory) and the action theory (theory of communikative action). It is interesting that both resolutions which are suggested by these two theories coverge on proceduralization of law, though their bases are quite incompatible.

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Max Webers Rechtsdenken

Makoto Sano

1991 Volume 1991 Issue 43 Pages 165-168,228
Published: April 30, 1991
Released on J-STAGE: January 15, 2009

DOIhttps://doi.org/10.11387/jsl1951.1991.165

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Wie dachte Max Weber über die Freirechtslehre? Diese Frage ist ein wichtiges Thema für die Gescjichte der Rechtssoziologie. Einfach gesagt, es ist eine Diskussion darüber, ob Weber positive zur Freirechtslehrhre war, oder ob Weber der Verteidiger der Begriffsjurisprudenz war oder nicht. Unser Bericht handelt von diesem Problem. Dabei legen wir einen Schwerpunkt auf Webers Beziehung zur "soziologischen Bewegung" der Judisprudenz in den Jurisprudenz in den ersten Jahren des 20. Jahrhunderts.

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A Study of the Sociology of Law in the United Kingdom

Centering around David Nelken's Comparative Study of Ehrlich and Pound on the Concept of Living Law

Susumu Sakurai

1991 Volume 1991 Issue 43 Pages 169-173
Published: April 30, 1991
Released on J-STAGE: January 15, 2009

DOIhttps://doi.org/10.11387/jsl1951.1991.169

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[title in Japanese]

[in Japanese]

1991 Volume 1991 Issue 43 Pages 174-179
Published: April 30, 1991
Released on J-STAGE: January 15, 2009

DOIhttps://doi.org/10.11387/jsl1951.1991.174

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[title in Japanese]

[in Japanese]

1991 Volume 1991 Issue 43 Pages 180-184
Published: April 30, 1991
Released on J-STAGE: January 15, 2009

DOIhttps://doi.org/10.11387/jsl1951.1991.180

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