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Kahei Rokumoto
1997 Volume 1997 Issue 49 Pages
2-14,255
Published: March 30, 1997
Released on J-STAGE: January 15, 2009
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The first section clarifies the conceptual framework that defines legal dispute as a strategic alternative chosen by the parties to a conflict mobilising the resources of legal system based on validly binding rules, and differentiates it from political, group, and community disputes respectively. The article then traces major developments in the problem setting of the Japanese scholars in the field: (1) Kawashima's model of legal adjudication held against the premodern, native Japanese model, narrowly focusing on the underdeveloped law consciousness of disputants; (2) enlargement, along the same line of modernising perspective, of the relevant factors determining the dispute settlement processes and inclusion of out-of-court settlement arenas in the analysis; (3) critical studies not only of the legal attitudes of the populous but also of the practices of courts and lawyers; and finally (4) proliferations in the 80's of new approaches taking the prevailing patterns as given and exploring different models for explaining them, rather than critically assessing their contributions to the legal order. The article concludes with a welcoming note for the variety of perspectives with a touch of warning against their degenerating into endless rhetorical contests.
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Shozo Ota
1997 Volume 1997 Issue 49 Pages
15-28,255
Published: March 30, 1997
Released on J-STAGE: January 15, 2009
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During the post-war period in Japan, judges, practicing attorneys, and legal scholars have gradually changed their evaluation on settlement in civil cases from negative to positive. Judges are now very active in judicial mediation. I summarized this transformation of opinion and practice in the first 2 sections of chapter 2.
During the same period, judges developed a new procedure called "Wakai-ken-Benron", which is basically a confidential judicial mediation according to my survey. I summarized the pros and cons of this rather amorphous procedure in section 3 of chapter 2. The new Code of Civil Procedure promulgated in 1996 provides this procedure as a case management tool.
A very unique school of thought has also been born and is becoming more and more influential recently. This school is called "the third wave of due process movement". They put radical emphasis on the party autonomy and the procedural justice. They do not see any importance of substantive laws. They instead believe that the spontaneous order emerges among disputants through fair communication. According to their theory, the only
raison d'être of legal system is to (re) establish the fair communication. They claim that judgments are not and should not be different from settlements.
In chapter 3, I employed theory of games to analyze and evaluate the movement for case settlement vis-a-vis judgment. The Coase Theorem and the recent development of Prisoner's Dilemma analyses shed new lights on the relation among dispute resolution by negotiation, case settlement, and judgment.
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Masaki Abe
1997 Volume 1997 Issue 49 Pages
29-41,254
Published: March 30, 1997
Released on J-STAGE: January 15, 2009
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In the course of many community conflicts which occurred in Kyoto City over the construction of condominium buildings during the period of so-called bubble economy, local residents used various strategies, including illegal as well as legal ones and norm-generating as well as norm-invoking ones, against construction companies. Those local residents think that law is merely one of instruments available for realizing their purposes. We can see the emergence of postmodern legel consciousness in such an attitude toward law. We can also argue that their strategic use or nonuse of law differentiates the legal order into many legal orders dependent upon various situational factors. The differentiation of the legal order is not a new phenomenon, however, because law always has to be interpreted in a particular situation to which it is to be applied and therefore the meaning of law and order according to it are inevitably dependent upon situational factors even though people believe in the universal legal order.
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Iwao Sato
1997 Volume 1997 Issue 49 Pages
42-51,254
Published: March 30, 1997
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Bei der kellektiven Konflikten z.B. Konsumerkonflikte, Umweltkonflikte usw., wo viele wegen desselbe Vorganges zugleich in einen Konflikt geraten sind, ist die Prozeßerhebung für die Verbrauchern und für die sich für den Umweltschutz interessierenden Bürger eine von wirksamen Strategien der Verfolgung des kollektiven Interessen, nämlich sie durch den Urteil die Rechtslage klären und ggf. die für sich günstige Rechtsfortbildung fördern können.
Im Vergleich mit einzelnen Verbrauchern und Bürgern haben die Organisationen, z.B. Verbraucherorganisation, Umweltorganisation usw., den doppelte Vorteil für solche Prozeßtätigkeit, und zwar als "political entrepreneur" und als "repeat player".
Trotzdem ist das japanische Rechtssystem nicht aktiv für die Begünstigung der Prozeßtätigkeit durch solche Organisationen. Als Folge davon bleibt die Stellung der Verbrauchern und der Bürger in Japan relativ schwach.
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an ethnomethodological respecification
Shiro Kashimura
1997 Volume 1997 Issue 49 Pages
52-62,254
Published: March 30, 1997
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The scheme of providing legal advice to the public is one of the most popular places for ordinary Japanese to come in touch with formal legal system. Based on the technique of ethnomethodological conversation analysis, the paper tries to describe how the advice-seekers tell their troubles and how the lawyer-advisers find adequate advice for the troubles in citizens' stories. The data and analysis reveals that, in the very process of applying formal and universalistic rules of law, both the lawyers and the lay persons try to recover the non-legal and local details of the case.
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A Casestudy of Dispute Resolution in the Japanese Organization
Toshiki Sato
1997 Volume 1997 Issue 49 Pages
63-73,253
Published: March 30, 1997
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Since 1984, Japanese organizations obtain a new worker-category "Sougoushoku Josei" (White-caller women in integrated course), which is made by the law "Koyoukikai-kinntouhou". Many disputes observed arround them, and most of them are not resoluted until now.
The Japanese organization and their dispute resolution depend much on implicit role -expectation under long-term social relation. "Sougoushoku Josei" is made by law, and no social role corresponds to it. So there is no creiterion or base of organizaional dispute resolution, and because of it, mutual misunderstandings are duplicated and complicated. This situation not only makes many disputes unresoluted, but also produces new dispute on dispute resolution itself.
In this paper, using some examples from a Japanese enterprise, we show the social mechanism of this multiple dispute-situation and take consider on some ways of resoluting it.
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Akira Moriya
1997 Volume 1997 Issue 49 Pages
74-85,253
Published: March 30, 1997
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Although Dr. Kawashima predicted thirty years ago that Japanese people would, sooner or later, get accustomed to the modern legal way of thinking, and accordingly, come to use law courts much more frequently to settle their disputes, that prediction appears to have failed, judging from the recent judicial statistics. But this does not necessarily mean that Japanese people are still reluctant to assert their rights publicly. For example, administrative procedures are widely used by consumers when they feel their rights are violated.
Analyzed from a theoretical point of view, minor disputes are not suitable to be managed by formal legal procedures not only because they are of high cost but also they tend to redefine each dispute from a strictly legal viewpoint and alienate the persons concerned, who usually do not separate clearly the legal from the non-legal interests. If small claims procedures should be worked out respecting each disputant's interests and decisions which have led to the escalation of their confrontation, it seems to me that the functional differentiation and integration is vitally important between formal legal procedures and small claims procedures, the latter taking only limited roles and carrying them out with the help of other legal procedures.
What is important from this perspective is to specify what kind of roles small claims procedures should take, and how various legal procedures can be coordinated to form a more or less systematized justice system. I would like to present a tentative idea in this essay.
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[in Japanese], [in Japanese], [in Japanese], [in Japanese], [in Japane ...
1997 Volume 1997 Issue 49 Pages
86-121
Published: March 30, 1997
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[in Japanese]
1997 Volume 1997 Issue 49 Pages
122-123
Published: March 30, 1997
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Miyoko Tsujimura
1997 Volume 1997 Issue 49 Pages
124-130,252
Published: March 30, 1997
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Article 24 of the Japanese Constitution, which declares the essential equality of the sexes and individual dignity, is highly estimated with that's original rough draft drawn by Beate Sirota early in February 1946. This provision has contributed to the transition of the japanese family, from "the semifeudalistic family [
ie] system" not only to "the modern family [
kindai-kazoku]" but also to "the contemporary family [
gendai-kazoku]", by emphasizing the individual dignity of persons.
Nevertheless further examinations would be required on the following points.
First, the concept of "the modern family" should be reexamined in an interdisciplinary approach. Second, it seems necessary to make clear the conflicts between Art. 24 and Art. 13 which protects the right to persuit of happiness. Because we'll have to make it a question that the choices of single mothers or homosexual couples, for example, might be protected under these articles or not.
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Tamie Kaino
1997 Volume 1997 Issue 49 Pages
131-137,252
Published: March 30, 1997
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The post war family law in Japan had liberated women from feudal oppression, however, it did not directly result in the autonomous liberation of women. This means so called "company-centralized or controlled lifestyle" type of rule over women has been continuing as if it were a result of women's subjective selection, thus women has been keeping under the established social system of the post war Japan. From 1990s, because of the hilights of women's claim to self-autonomy and to democratizaton, family law reform is at last discussing with great reality.
This essay will discuss about the role of the post war family law in the development of sexual inequality.
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Michiko Ishii
1997 Volume 1997 Issue 49 Pages
138-143,252
Published: March 30, 1997
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1. Introduction
2. Legal Reforms after World War II
3. Amendments
4. Statistics
5. Conclusion
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Sumitaka Harada
1997 Volume 1997 Issue 49 Pages
144-150,251
Published: March 30, 1997
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En abolissant une sorte de droit d'ainesse qui était édicté par le régime précédent, la réforme d'après-guerre du droit des successions a établi en 1947, le principe égalitaire entre les enfants ainsi que le droit héréditaire d'époux survivant dont la part légale était à un tiers du héritage. Cette réforme, qui était absolument nécessaire à la modernisation de la famille japonaise, a soulevé les débats sur la nécessité d'une loi particulière à la succession des fonds agricoles pour sauvegarder l'unité des exploitations. Pourtant, le projet de loi a été rejeté devant l'objection des juristes qui prétendaient que cette sorte de loi deverait etre contre à l'ésprit égalitaire du nouveau régime, d'une part, et que selon les enquêtes sur place, les families paysannes ne faisaient jamais le partage égalitaire d'héritage, d'autre part. On voit là une paradoxe, causée par l'écart entre le droit et la réalité sociale.
Cet écart est devenu peu à peu moindre, au fûr et à mesure que les families japonaises, notamment citadines, acceptent de plus en plus largement le principe égalitaire des enfants. Mais depuis la fin des années 70, où la vieillessement très rapide de la population a démarré avec la transformation de plus en plus nette de la famille, on commence à mettre en cause le droit des successions, du point de vue tout à fait différente. Il s'agit d'abord d'augmenter la part légale d'époux survivant au delà de la moitié, sa part actuelle déjà une fois augmentée en 1980. En suite, il y a des gens qui revendiquent qu'une plus grande part légale doive être attribuée à l'héritier descendant qui assûme la responsabilité des soins à l'égard des parents agés, notamment en état de dépendance. En plus, on voit l'augmentation du nombre des personnes agées qui choisissent de dépenser leurs biens pour assurer la vie et les soins nécessaires à leur quatrième âge. D'ailleurs, ces tendances sont renforcées par les mesures de la politique sociale. Il nous faudra nous intérroger sur le rôle du droit des successions dans la société actuelle.
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Yoshihiko Nawata
1997 Volume 1997 Issue 49 Pages
151-155,251
Published: March 30, 1997
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In größeren Städten in Deutschland findet man ein Bürgerbeteiligungssystem der Stadtteilvertretung, die aufgrund der Wahlvorschläge der politischen Parteien und Wählervereinigungen von der Bevölkerung gewählt wird. Diese für Betrachter aus Japan erstaunlich stark politisch gefärbte Organisation hat viele rechtliche Befugnisse, was in Bürgerbeteiligungen in Japan sehr selten der Fall ist. Auf den ersten Blick scheint es nicht möglich zu sein, die Bürgerbeteiligungen in Deutschland und Japan sinnvoll zu vergleichen. Aber vom soziologischen Gesichtspunkt aus kann man beide als verschiedene Formen der "Dezentralisierung der Entscheidungsbefugnisse" betrachten, die nicht qualitativ, sondern nur noch quantitativ voneinander verschieden sind. Der Aufsatz soil die Grundzüge der gleitender Skala der Stärke der Bevölkerungsorganisationen darstellen.
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For the amendment of 1973 Seto Inland Sea Act
Yasuko Gotoh
1997 Volume 1997 Issue 49 Pages
156-161,250
Published: March 30, 1997
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Seto Inland Sea, around which about 30 million people live, is largely changing. Its coastal zones originally had nice views, but in 1960s several reclamation projects had been carried out, so water pollution occurred.
In 1973, therefore, Seto Inland Sea Act was established which provides that as for the reclamation projects of the coastal zone areas, their environment must be thought over carefully. Nevertheless, several big projects of coastal zones have continued to be carried out, which as a result has caused the 1973 Seto Inland Sea Act "a mere scrap of paper".
Facing with the environmental disruption of Seto Inland Sea, we must now consider the amendment of the Act.
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A Case Study of Amagasaki River Improvement
Tatsuki Higaki
1997 Volume 1997 Issue 49 Pages
162-166,250
Published: March 30, 1997
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This article presents a detailed description of the 1989 river improvement process in Amagasaki City, with the purpose of analyzing the mechanism of policymaking and implementation by local governments.
Relying on the so-called 'Four-Player' theory proposed by Katsumi Yorimoto, the description was made focusing on the four players that played critical roles in local policymaking and implementation: Head of the local government (e.g., mayor), local assembly, residents, and labor unions of local government employees. The auther believes that the theory can make a clear account of structure of local dynamism in policy process.
The article examines whether one of the conflict theories applies to the Amagasaki case: the theory proposed by J.S. Coleman that suggests six emerging patterns in rise and spread of conflicts between residents and local governments. The author proposes that not only local policymaking but also implementation should be seen as dynamic processes of compromise and adjustment among various, conflicting interests.
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Preliminary Report on Interpreting the Social Surveys as Social Interactions
Kenichi Yoneda
1997 Volume 1997 Issue 49 Pages
167-172,249
Published: March 30, 1997
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In this report, I show the methodological perspective for the historical study of corporate legal practices, dealing with the survey of the corporate legal practices in Japanese corporations. I point out that the importance is in interpreting the survey on the context of social interactions.
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Hajime Yoshino
1997 Volume 1997 Issue 49 Pages
173-177,249
Published: March 30, 1997
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The author explicates the knowledge structure of the United Nations Convention on Contracts for the International Sale of Goods (CISG) in terms of Logical Jurisprudence, which derives from three primitives, namely, legal sentences, inference rules and finally truth values. He examines the relation between legal object rules, which prescribe the obligations of human acts, and legal meta rules, which prescribe the validity of legal rules. He applies this scheme to the analysis of CISG in order to demonstrate that legal knowledge of CISG is inherently deductive.
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Shingo Miyake
1997 Volume 1997 Issue 49 Pages
178-182,249
Published: March 30, 1997
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Restrictive business practices by Japanese attorneys at law violate Japan's Antimonopoly laws. Through setting fee schedules and regulating advertising activities, Japanese attorneys have been trying to maximize their incomings. For example, they set minimum fee schedules. They also porohibit themselves from running commercial advertisements which say "lower prices than fee schedules". In order to justify their anti-competitive practices, they have arbitrarily interpreted Japan's Attorneys Act. However, the Act, if interpreted in terms of consumers' perspective, rejects lawyers' interpretation.
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Shigeki Tanaka
1997 Volume 1997 Issue 49 Pages
183-187,248
Published: March 30, 1997
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The most popular type of matrimonial residence in the old Japan is doulocal marriage which we can know through "Diary Kagero" written at the end of 10th century by Lady Fujiwara.
Wife lives together with her mother, children, sisters and brothers. Husband visits his wife only in the night. children belong to mother's clan.
In this paper I will, first examine sone taboos in the doulocal marriage; for example that father and sons can not live together in the same house, while father and daughter can live together. I should suppose that the relation between mother and children is much stabler than the relation between father and children.
Second, I would suggest the doulocal or matrilocal marriage in a system to exchange men between matrilineal clans.
Third, I would also consider when and why doulocal marriage changes into neolocal or patrilocal marriage.
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Yuriko Kaminaga
1997 Volume 1997 Issue 49 Pages
188-192,248
Published: March 30, 1997
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This paper suggests that Japanese scholars should pay attention to the world-wide phenomenon of "feminization" of the legal profession. Reflecting on some findings of my three research projects since 1990, I define the current condition of Japanese women lawyers with "tokenism" and offer some explanation for the features of their status. My contention is that if Japan is to face "feminization" of the legal profession in the near future, we should now learn what consequeces it might bring about from the experience in other contries.
In the era of feminization, a new research agenda departed from the description (whether quantitative or qualitative) of women lawyers is called for. Some feminist scholars now urge that the major questions to be asked in the study of the legal profession should "examine the role of gender difference, as socially constructed, might play in the transformation of law practice". (Menkel-Meadow, 1989).
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Hidekazu Nishida
1997 Volume 1997 Issue 49 Pages
193-197,248
Published: March 30, 1997
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Any design of a dispute settlement system should have an image of the users of the system.
This paper attempts to identify how people are trying to manage their difficulties in everyday life, by analyzing the interviews with nine working women from the perspective of the voice behaviors-how they move about and talk to others. Four modes of discourse are recognized: "idiom talk", "experience talk", "case talk", and "coinage talk".
The analysis of the interviews seems to suggest a possible image of legal subjects who are trying to overcome their difficulties mainly through "experience talk", telling their own stories.
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Structure of Professional Legal Perception
Yoshiyuki Matsumura, Shozo Ota, Koichi Okamoto
1997 Volume 1997 Issue 49 Pages
198-202,247
Published: March 30, 1997
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Japanese judges usually spend their entire legal career as judges. Many of their legal jargons are unique to their professional circle and reflect their cognitive structure about legal issues.
"Suji" and "suwari" are among such most frequent jargons. "Suji", whose lexical translation is "line", is often used in a phrase "suji ga warui", meaning "suji is bad for this case". Such a phrase might be translated into "this case has a bad logic or an unclear background". The phrase is typically used to describe civil cases, and is less often spoken of by other legal professionals. "Suwari", whose direct translation is "well-seatedness" is similarly phrased, but it is, arguably more often used to describe judgments that are already made at courts of lower level.
The present study is an attempt to give quantitative description of these two concepts by a cognitive psychological approach. As the first stage of our study, we made intensive interviews to seven retired or current judges. Based upon the interview result, we structured the questionnaire.
As the second and final stage, we sent out the questionnaires to all the retired judges in Japan (1, 120), out of which 339 were returned. The respondents were asked to respond in psychological judgment scales, to fictitious cases in which some crucial details were manipulated as experimental variables. Statistical analyses on these variables are worked out to render experimental description of these concepts as correlates to and functions on more direct legal perceptions.
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Katsuhiro Tani
1997 Volume 1997 Issue 49 Pages
203-207,247
Published: March 30, 1997
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The purpose of this paper is to discuss the new model of the private members' bills and to analyze the policy secretary's style of policy/legislative assistance. First, we suggest that it is necessary for the Diet to shift the center of the legislation to the members' bills by the Diet member's initiative away from the bureaucracy-led Cabinet bills and to reflect the discussion upon a national basis within and outside the Diet in the decision-making process. Second, we verify several functions of the legislative staff to the Diet members and consider how the policy secretary should take a stance to strengthen the resources for policy-making by the political parties and the Diet members. It concludes that the parties need to employ the policy secretary as an expert to draft bills by formal negotiation and coordination within and among party organizations.
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La philanthropie contre le service public
Katsumi Yoshida
1997 Volume 1997 Issue 49 Pages
208-212,246
Published: March 30, 1997
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J'ai essayé, dans ce rapport, de tracer le progrès de la législation francaise du logement social à partir de la loi Siegfried de 1894 jusqu'à la loi Bonnevay de 1912. La loi de 1894 a été fondée sur l'idée de la philanthropie. La loi de 1912 a été menée par l'idée du service public. Il y a un changement très net de l'idée directrice entre ces deux lois. Par quel sujet ces idées ont-elles été présentées, et dans quel but? Quelle est la cause de ce changement de l'idée directrice? Ce sont des questions auxquelles je me suis efforcé de répondre dans ce rapport.
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Hiroto Hata
1997 Volume 1997 Issue 49 Pages
213-218,246
Published: March 30, 1997
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In Japan that has the smaller population of the legal profession and its poor specialization, the presence of specialized criminal lawyers has been overlooked. For they are mostly ex-prosecutors and seen as the second rate lawyers in the private practice.
But recently a few radical lawyers also take part in the field of the criminal defense of yakuza and illicit drug traffickers. They, new comers, hold the more adversarial style that has sprung from the techniques for the defense of labor union or radical activists.
So now there is the division of labor in the territory of the specialized criminal defense. Depending mainly on their carreer and their clients' budgets, each specialist holds his own practical style.
This specialization promotes the development of the expertise at the upper level. At the lower level, specialists who deal with a lot of dirty work which general practioners gave up, contributes to the prestige of the legal profession as a whole and the administration of criminal justice.
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Yoshiki Kurumisawa
1997 Volume 1997 Issue 49 Pages
219-223
Published: March 30, 1997
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Shoichi Sato
1997 Volume 1997 Issue 49 Pages
224-229
Published: March 30, 1997
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Seigo Hirowatari
1997 Volume 1997 Issue 49 Pages
230-236
Published: March 30, 1997
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Takanori Kitamura
1997 Volume 1997 Issue 49 Pages
237-242
Published: March 30, 1997
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1997 Volume 1997 Issue 49 Pages
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Published: 1997
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