-
Takehisa Awaji
1995 Volume 1995 Issue 47 Pages
2-6,253
Published: March 31, 1995
Released on J-STAGE: January 15, 2009
JOURNAL
FREE ACCESS
We will discuss in our symposium of the comming 3 years on the theme "Japanese Society and Law" to know mainly if the classical theories thereon are still true, or in what extent Japanese Society has been changed.
View full abstract
-
Shigeki Honma
1995 Volume 1995 Issue 47 Pages
7-22,253
Published: March 31, 1995
Released on J-STAGE: January 15, 2009
JOURNAL
FREE ACCESS
•On Subcontract Provisions
•On Customary Law
View full abstract
-
Akira Shoda
1995 Volume 1995 Issue 47 Pages
23-33
Published: March 31, 1995
Released on J-STAGE: January 15, 2009
JOURNAL
FREE ACCESS
-
Tomoyuki Ota
1995 Volume 1995 Issue 47 Pages
34-44,253
Published: March 31, 1995
Released on J-STAGE: January 15, 2009
JOURNAL
FREE ACCESS
This paper discusses (1) forms of "DANGO" (agreements among bidders of public constructon contracts to avoid competition), their legal and social backgrounds, and (2) change of "Hennmusei" in the public construction contracts. Before the second world war, clauses in the standard forms of public construction contracts provided that the owner held various discretionary powers to make rules when a dispute occured between the parties. Usually disputes were in fact settled accordingly. This characteristic of the owner-contractor relationship was called "Hennmusei".
In 1938, "The Japan Association of C vil Engineering Companies", a public service corporation, was established when Japan was under the controlled economy. The activities of this association regulating the competition in bidding brought about DANGO of present form where bidders concluded DANGO agreements under the explicit or implicit support of the contractors' organization.
In 1950, the Ministry of Construction enacted the standard form of public construction contracts. Here, the previous clauses admitting "Hannmusei" were replaced with the new clauses where a contractor stands on an equal footing with an owner. Usually, at the negotiations between the parties on the subject how a clause should be interpreted or how the contract should be altered, the owner still speaks the last word, however.
In 1900, "Simei" bidding was introduced. Under the present "Simei" bidding, an owner-an Agency of the Government-selects about ten potential contractors from an approved list and invites them for bidding. This form of bidding allows the owner to keep continuing relationship with some contractors. Owing to this relationship, it is expected that the contractor faithfully fulfill his obligation, and that both parties can easily reach agreement, when an alteration of the contract is required, This, however, facilitates the bidders to conclude the above-mentioned form of DANGO, and allows the owner to be in the favorable position on the interpretation or alteration of the contract.
View full abstract
-
Hideki Kanda
1995 Volume 1995 Issue 47 Pages
45-54,252
Published: March 31, 1995
Released on J-STAGE: January 15, 2009
JOURNAL
FREE ACCESS
The bank-customer relationship in Japan has several distinct characteristics. Some of them are common in other trade relationships in Japan, and others are unique in banking transactions. Banking transactions between banks and their customer firms in Japan show three unique characteristics. First, banks and customer firms engage in a very wide range of transactions, from straightforward lending to new type transactions such as swap transactions and even to bank's stockholding of their customer firms. Second, a firm usually establishes long-term contractual relationships with more than one, and typically several, banks. One of the banks serves as the "main bank". Third, banks obtain a strong legal position under a standard form contract known as the Banking Transactions Agreement, but they sometimes show behavior that looks quite inconsistent with their legal position.
These three distinct characteristics are found in many situations including daily credit transactions, rescue actions at the customer firm's financial distress, and bank's stockholding of their customer firm. All of them, however, began to evaporate in recent years.
The long-term relationship between banks and their customer firms covering a very wide range of transactions may have produced an exclusivity and thus hindered new entry by competing financial institutions in a particular transaction area. The existence of this exclusivity, however, is debatable, and lacks empirical support.
View full abstract
-
Kosuke Oyama
1995 Volume 1995 Issue 47 Pages
55-63,251
Published: March 31, 1995
Released on J-STAGE: January 15, 2009
JOURNAL
FREE ACCESS
"Japanese" business practice contains the relationship not only in market, but also between government and market. The purpose of this article(report) is to examine the problem of administrative guidance as "Japanese" business practice from the perspective of the science of public administration and to make clear of its realities as much as possible.
More concretely, this article argues as follows.
1 The comparison of approach to administrative guidance: the science of law and the science of public administration
2 The problem of the administrative guidance as "Japanese" business practice:
(1) Is it really a matter of problem?
(2) Is administrative guidance effective? If so, why?
(3) How can we change the system of administrative guidance? How can we reform it?
After these arguments, this article concludes as follows.
Firstly, the interdisciplinary approach to the problem of administrative guidance will be more needed. In this sense, the role of the science of law and society will be more important. Secondly, the foreign affiliated firms in Japan do not make so much of the problem of administrative guidance or regulation by government as "Japanese" business practice. They are more interested in the practice, institution or organization in market. but thirdly, if one of the characteristics of "Japanese" business practice is the long term, successive and multi-dimensional relationship, it is adaptive to the relationship between government and market and it makes strong of the effectiveness of administrative guidance. But because the system of administrative guidance has promoted the vested interest of producers rather than consumers, many Japanese as consumers or living people come to think to reform that system.
View full abstract
-
From a Legal Philosopher's Viewpoint
Susumu Morimura
1995 Volume 1995 Issue 47 Pages
64-75,251
Published: March 31, 1995
Released on J-STAGE: January 15, 2009
JOURNAL
FREE ACCESS
1 Introducution
2 Outline of a General Theory of Relational Contract
3 Why is "Japanese" Transaction Custom Prevalent in Japan?
4 Will "Japanese" Transaction Custom Change?
5 Concluding Remarks
View full abstract
-
From the Viewpoint of Sociology of Law
Yoshiyuki Matsumura
1995 Volume 1995 Issue 47 Pages
76-85,250
Published: March 31, 1995
Released on J-STAGE: January 15, 2009
JOURNAL
FREE ACCESS
Long-term contractual relationships are one of the most notable characteristics of business transactions in Japan. In this paper, this characteristic is explained in the context of Kawashima's sociology of law principles, and this explanation is then contrasted with explanations using a micro-economic approach (
ie, a typically individualistic method) and with Macneil's sociological analysis of contract (
ie, which represents one version of collective social theories).
View full abstract
-
[in Japanese], [in Japanese], [in Japanese], [in Japanese], [in Japane ...
1995 Volume 1995 Issue 47 Pages
86-99
Published: March 31, 1995
Released on J-STAGE: January 15, 2009
JOURNAL
FREE ACCESS
-
Hirooki Matsui
1995 Volume 1995 Issue 47 Pages
100-106,250
Published: March 31, 1995
Released on J-STAGE: January 15, 2009
JOURNAL
FREE ACCESS
I Introduction
II History and present state of common in Himuro-Zaisanku
1 History of common in Himuro-Zaisanku
(1) A suit (Yamaron) in Edo era
(2) Two suists in Meizi era
(3) After promulgation of Chosonsei
2 Present state of common in Himuro-Zaisanku
(1) Use of common
(2) Administrative system of common
(3) Transaction of common
View full abstract
-
Hitoshi Kamitani
1995 Volume 1995 Issue 47 Pages
107-113
Published: March 31, 1995
Released on J-STAGE: January 15, 2009
JOURNAL
FREE ACCESS
-
Shyu Wakasaki
1995 Volume 1995 Issue 47 Pages
114-119,250
Published: March 31, 1995
Released on J-STAGE: January 15, 2009
JOURNAL
FREE ACCESS
1. Introduction
• The influence of urban development on common usage
• Case study of the compensation for the loss of a common at Himuro district of Hirakata City
2. Criteria for assessing compensation for the loss of a common
3. Compensation Criteria
4. Apprasing Tachikishihaiken (one sort of common at Himuro)
5. Apprasing Shitakusakariken (another sort of common at Himuro)
View full abstract
-
Yoshitomo Ode
1995 Volume 1995 Issue 47 Pages
120-121
Published: March 31, 1995
Released on J-STAGE: January 15, 2009
JOURNAL
FREE ACCESS
-
Analysis of the Questionaires
Shunsuke Marushima
1995 Volume 1995 Issue 47 Pages
122-127,249
Published: March 31, 1995
Released on J-STAGE: January 15, 2009
JOURNAL
FREE ACCESS
1. Japan Federation of Bar Associations (JFB) set up the Center for Criminal Advocacy in April 1990 in order to reform advocacy of criminal suspects from practicing attorneys' perspectives.
2. Under the said System any criminal suspect can have chance to meet with and -retain attorney as the criminal counsel if the suspect so wishes. The System was introduced to all the Bar Associations in Japan by October 1992.
3. The number of attorneys who are registered under the System now totals approximately 5600 (nearly 37% of all the lawyers in Japan) and it all still increasing mainly because of registration by young attorneys. The number of cases in which the duty-attorneys were asked to meet with criminal suspects totals 16, 444 during the period between April 1990 and the end of 1993. Since October 1993 duty-attorneys were asked to meet with criminal suspects on more than 1, 000 occasions every month. The number of cases in which duty-attorney are involved exceeds 10, 000 each year and it consists of approximately 10% of all the criminal suspects cases under detention.
4. Rapid development of the duty-attorney System also brings about financial restraint of the Japan Legal Aid Association which financially supposrts the System. It sometimes compels the attorneys to work free of fees.
We believe that under Article 34 of the Japanese Constitution we must establish the system under which every suspect under detention is ensured with their rights to attornyes free of charge. For this purpose, the system of legal aid should be substantiated and system under which suspects will have free access to attorneys financially supported by the State should be realized. At the same time we also need support of the general public.
View full abstract
-
Through the Fact-finding Study
Hideaki Kawasaki
1995 Volume 1995 Issue 47 Pages
128-134,248
Published: March 31, 1995
Released on J-STAGE: January 15, 2009
JOURNAL
FREE ACCESS
1. The significance of the duty solicitor system
2. The method of the fact-finding study
3. The actual circumstances of the duty solicitor's activity
-The time of the first meeting and the duration of the interview-
4. The role of the duty solicitor
a. The content of the interview
b. The situation when the counsel is given to the client and when the councel is denied
c. The defense after the client is acceptted
d. The thoughts of the duty solicitor
5. The assignments of the duty solicitor system
View full abstract
-
Hideki Kuwashiro
1995 Volume 1995 Issue 47 Pages
135-141
Published: March 31, 1995
Released on J-STAGE: January 15, 2009
JOURNAL
FREE ACCESS
-
Katsuhiro Tani
1995 Volume 1995 Issue 47 Pages
142-146,248
Published: March 31, 1995
Released on J-STAGE: January 15, 2009
JOURNAL
FREE ACCESS
This paper aims to examine the 915 Diet members' bills submitted to the Diet from the 80th to the 129th Diet Session (1976-1994). The agenda-setting functions by Diet members are analyzed from five aspects: 1) sponsored party, 2) some types of policy, 3) process of deliberation, 4) party votes, and 5) influence on the government legislation, respectively. Traditionally our constitutional scholars have considered that the functions of the member bills have been playing a limited role to supplement the government. This time, not taking the traditional approach, I use a new approach based upon interactions among interest groups, the political parties, and the government to analyze them.
First, the member bills reflect the pluralistic policy interests of public opinion and interest groups. Especially, the bills through the opposition parties lay emphasis on the protective regulatory policy and the redistributive policy, while the LDP (the liberal Democratic party) has priorities over the distributive policy and the competitive regulatory policy. Secondly, the bills from the oppositiom parties have the agendasetting function by stimulating and altering governmental legislation related to the labor policy, environmental protection, social welfare, guarantee of human rights, etc. The trend is more evident with oppositions parties' participation in the ruling coalition. This leads us to conclude that the member bills have the functions to create the rights of minorities and the weak persons, which have a substantial influence on the public policy making process.
View full abstract
-
Hiroyuki Ikeshima
1995 Volume 1995 Issue 47 Pages
147-151,247
Published: March 31, 1995
Released on J-STAGE: January 15, 2009
JOURNAL
FREE ACCESS
This report aims at a more accurate understanding of the factual analysis of modern global Japanese companies in the 1990's, through a broad view and a multifaceted approach to various laws with respect to their finances and legal controls under the Restructuring Establishment about nowadays.
(1) Company Law Revisions and practical uses.-in 1990, 1993 and 1994.
(2) Economic Law Revisions and practical uses.-Security Exchange Act, Act for the Prohibition of Private Monopoly and the Maintenance of Fair Trade.
(3) Minor Enterprises Support Promoting Acts.-1993.
Also, the Foundamental Formation of Administrative Procedure Act and the Environmental Foundation Act have appeared in 1993 & P. L. Act at last in 1994.
These line up legal phenomena are expected to be strategy themselves. Human right supporting acts would be formed of the Law and Legal consciousness on Equity now.
View full abstract
-
The Decentralizing Mechanism of an Organization
Ken'ichi Yoneda
1995 Volume 1995 Issue 47 Pages
152-156,247
Published: March 31, 1995
Released on J-STAGE: January 15, 2009
JOURNAL
FREE ACCESS
The Corporate Legal Departments in Japan have been steadily growing since the late 1970's. As each legal department has had to adapt to particular corporate environments, the organizational forms and the tasks they perform are different among individual companies. I report here the tentative result of my research on the organizational differences of each legal depertment.
I assert that there is a decentralizing mechanism found within a corporation, which consists of two distinct operations; the one is directly against the effort to centralize legal functions, another works to collapse from within the legal department itself. These components are produced by member's behavior in corporations, so we can think of the mechanism as an unintended consequence of their behavior. Once we recognize such a mechanism operating within an organization, we can understand the different forms and developmental processes of particular legal departments.
These findings are based on the results of analyses using the trouble shooter's approach. This was established for oral interview data collection on approximately 50 businessmen who belong to or are connected with the legal departments within 20 Japanese corporations.
View full abstract
-
Ryo Hamano
1995 Volume 1995 Issue 47 Pages
157-162,246
Published: March 31, 1995
Released on J-STAGE: January 15, 2009
JOURNAL
FREE ACCESS
It is well known that the vast majority of Japanese practicing attorneys are sole practitioners. Only about 10 percent of the lawyers belong to partnership. Average size of law firms is very small. In the late 1980's, however, the number of firms with more than 10 attorneys is increasing more rapidly than that of firms with less attorneys. The largest law firm is now in Tokyo with more than 50 attorneys.
This paper identifies the recent change in the size of law firms in Tokyo and tries to present a theoretical framework which can explain the emergence of large firms in the late 1980's.
View full abstract
-
Ichiro Ozaki
1995 Volume 1995 Issue 47 Pages
163-167,246
Published: March 31, 1995
Released on J-STAGE: January 15, 2009
JOURNAL
FREE ACCESS
In an urban society, one finds many individualists holding pluralistic values and the common norms shared among people are disappearing. In society as a whole, and more specifically residential communities, members have lost their ability to settle conflicts among themselves. Instead, recourse to the public legal system is becoming an unavoidable last step reluctantly taken by the parties involved. But legal systems fail in such cases because effective legalistic communication methods and strong urban community notions are glaringly absent.
In this context, I took up the theme of conflict-settlement and collective decisionmaking in owner-occupied residential condominium housing. Condominium living classically illustrates the complex relationship between urban community and the legal system. There, residents cannot avoid (even if they would choose to) close interactions and, where necessary, rational cooperation and negotiations to maintain community order.
From 1992 to 1993, I researched, using questionnaires and in person interviews, the everyday communications among residents of a 27 year old urban housing complex (
danchi) of 320 apartment units in Yokohama, and studied their conflict-settlement and collective decision-making processes. I reported the results of this research at this Association's 14th May 1994 symposium, which reports are summarized in Japanese elsewhere in this issue.
View full abstract
-
Nobuhisa Segawa
1995 Volume 1995 Issue 47 Pages
168-172
Published: March 31, 1995
Released on J-STAGE: January 15, 2009
JOURNAL
FREE ACCESS
-
Masayuki Murayama
1995 Volume 1995 Issue 47 Pages
173-177,245
Published: March 31, 1995
Released on J-STAGE: January 15, 2009
JOURNAL
FREE ACCESS
The paper tries (1) to describe current criminal defense practice, which has been affected by the expansion of legal practice in business and by the transformation of the court-appointed counsel system, and (2) to explore professional and institutional conditions of the current practice.
The data was obtained from mail questionnaire survey of 1, 000 lawyers conducted in 1991 (476 returned effective answers), interviews of 73 lawyears who worked as court-appointed counsel in 1990, and questionnaire research of 60 lawyers on their criminal defense activities. The all lawyers practiced in Tokyo and were selected randomly.
The court-appointed counsel was much less active both in and out of court than the retained counsel. But the activities of the retained counsel also fell short of the full assertion of the rights of the accused. The current rather inactive defense practice seems to be a result of professional and institutional factors, such as the insignificance of criminal cases for the management of law offices, the remote relationship between court-appointed counsels and their defendants, and the insufficiency of criminal defense training for lawyers.
View full abstract
-
Atsusi Bushimata
1995 Volume 1995 Issue 47 Pages
178-182
Published: March 31, 1995
Released on J-STAGE: January 15, 2009
JOURNAL
FREE ACCESS
-
Kahei Rokumoto
1995 Volume 1995 Issue 47 Pages
183-189,245
Published: March 31, 1995
Released on J-STAGE: January 15, 2009
JOURNAL
FREE ACCESS
Legal culture has long been a central focus of the Japanese socio-legal studies. However, there is a tendency today to play down or even deny the importance of cultural factors in legal processes, while in the Western countries they are increasingly drawing attention. The author criticizes Mark Ramseyer's study in law and economics that claims to explain the Japanese out-of-court settlement practices without resort to culture. The author rejects the notions of culture that simply equate it with the characteristics of a national legal system or with the prevalent values actually held by individual members of society, and urges to stick to the classical sociological notion that culture embodies a system of symbolic meanings representing the basic frameworks for cognition and evaluation, distinctive to each society and that it inevitably exerts pervasive influence on social processes and institutions.
View full abstract
-
Masanobu Kato
1995 Volume 1995 Issue 47 Pages
190-195,244
Published: March 31, 1995
Released on J-STAGE: January 15, 2009
JOURNAL
FREE ACCESS
The differences between the role of the law in the Japanese and Western societies has been one of the favorite topics in the sociology of law. Recently, Western commentators have viewed the relatively small role of law and the legal profession in Japan as evidence of smooth social management. For many years after the surrender of Japan in World War II, however, the same phenomenon was often interpreted by Japanese commentators as evidence of Japan's under-development or pre-modernized condition. The limited role of law and lawyers was considered to be a weak point of Japanese society, especially in the past when the Japanese were not confident of the validity of their cultural system. Now, when Japan is enjoying prosperity, the limited role of law and lawyers is considered one of the merits of the Japanese society. Anyway, the difference of the role of the law and the legal proffessions has been considered as been culturally based. Recently another approach has developed. This opinion asserts that the differences between the role of law and lawyears in the Japanese and Western societies is not a reflection of cultural differences, but rather a reflection of the relative inefficiency of the Japanese judiciary or the inconvenience of obtaining the legal services of practitioners in Japan. According to this opinion, the different role of law and lawyers in the Japanese and Western societies is a reflection of superficial differences in the legal institutional settings of the societies and is not deeply rooted in their cultures.
In this report, I proposed the third type of the interpretation of the differences of the social function of the law and the legal professions of the Japanese and Western societies. The detail has been already made public in: Kato,
The Role of Law and Lawyers in Japan and the United States, 1987 No. 2 BRIGHAM YOUNG UNIVERSITY LAW REVIEW 627-698 (1987).
View full abstract
-
Kazuhiko Tokoro, Haruo Nishimura, Takashi Kubo, Naotaka Katoh, Mikio K ...
1995 Volume 1995 Issue 47 Pages
196-200,244
Published: March 31, 1995
Released on J-STAGE: January 15, 2009
JOURNAL
FREE ACCESS
In modern societies, when corporate actors take "actions" in behalf of their organizations, how and against whom the responsibility should be overtaken has become important and yet difficult problem to judge. This paper is the report of the crosscultural surveyes by use of random samples of adults.
The primary component of each survey is a set of short vignettes describing acts of wrongdoing by individuals inside corporate hierarchies. Each vignette contains a set of experimental manipulations (2x2x3).
Each of these stories manipulated three variables: the mental state of the principle actor in the vignette (committing accidental vs. negligent wrongdoing); the actor's position within the hierarchy (subordinate vs. mid-level authority), and the others' influence in committing the act (acting alone, acting under orders, or acting in collectively with others in the organization).
View full abstract
-
Yaxin Wang
1995 Volume 1995 Issue 47 Pages
201-206
Published: March 31, 1995
Released on J-STAGE: January 15, 2009
JOURNAL
FREE ACCESS
-
A Case of the Osaka Bar Associaton
Keiichi Ageishi
1995 Volume 1995 Issue 47 Pages
207-211,243
Published: March 31, 1995
Released on J-STAGE: January 15, 2009
JOURNAL
FREE ACCESS
This essay intends to explain lawyer's social attitudes toward bar politics in Japan. A typology of lawyers, in terms of their personalities, such as one who values protecting human rights over profiting and vice versa, does not explain changing attitudes toward bar politics. Based on a survey of lawyers in Osaka, I have come to the conclsion that lawyers have at least two types of attitudes: one oriented to adopt a realistic approach, and one based on individual moral principles. Ordinary lawyers tend to adjust their attitude with changes in their environment.
Those who take the latter attitude have more resources at hand in which their opinions and beliefs carry. the day in a bar association than ones who take former attitude. Often they tend to take the latter attitude when they feel there is an urgent need to keep good relations with the government. As a result, a bar association tends to be on a cooperative basis with the government contrary to the traditional image of organisations standing in opposition to the government. This model also differs from the traditional mode of bar associations, which assumes bar associatons are eager to protect human rights against the government under any conditions. I will present a hypothesis that they yet need to adopt anti-governmental positions for several reasons such as the need to increase the number of corporate lawyers, the expansion of out-of-court mediation, the presence of cooperation with the Ministry of Justice concerning the issue of foreign lawyers, and so on.
View full abstract
-
Hiroshi Otsuka
1995 Volume 1995 Issue 47 Pages
212-218,243
Published: March 31, 1995
Released on J-STAGE: January 15, 2009
JOURNAL
FREE ACCESS
Social Movements and Litigation
Understanding Litigation as Law Reform Movements
Characteristics of Law Reform Movements
Functions of Lawyers in Law Reform Movements
Analytic Frameworks
Significances of Public Interest Lawyering in Law Reform Movements
Three Models of Lawyering: "Patronage", "Comradeship" and "Collegiate"
Three Models and Characteristics of Law Reform Movements
What Influences Lawyer-Client Relationships?
Two Constitutional Lawsuits in Kansai
Practical Implications
Two Dimensions of Law Reform Movements and Organizational Strategies
View full abstract
-
[in Japanese]
1995 Volume 1995 Issue 47 Pages
219-223
Published: March 31, 1995
Released on J-STAGE: January 15, 2009
JOURNAL
FREE ACCESS
-
[in Japanese]
1995 Volume 1995 Issue 47 Pages
224-228
Published: March 31, 1995
Released on J-STAGE: January 15, 2009
JOURNAL
FREE ACCESS
-
[in Japanese]
1995 Volume 1995 Issue 47 Pages
229-233
Published: March 31, 1995
Released on J-STAGE: January 15, 2009
JOURNAL
FREE ACCESS
-
[in Japanese]
1995 Volume 1995 Issue 47 Pages
234-238
Published: March 31, 1995
Released on J-STAGE: January 15, 2009
JOURNAL
FREE ACCESS
