法社会学

企画趣旨

阿部昌樹

2004 年 2004 巻 61 号 p. 1-7
発行日: 2004/09/30
公開日: 2010/04/15

DOIhttps://doi.org/10.11387/jsl1951.2004.61_1

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弁護士•相談者間における意思決定プロセス

多重債務問題を題材として

木下麻奈子

2004 年 2004 巻 61 号 p. 8-23,215
発行日: 2004/09/30
公開日: 2010/04/15

DOIhttps://doi.org/10.11387/jsl1951.2004.61_8

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This paper focuses on lawyers' and clients' decision-making processes on debt problems. Three debtors and five lawyers are interviewed from June to July, 2003. As a result, their understandings of cases and lawyers' roles are extracted as key factors, which make the misunderstanding between lawyers and clients.

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Lawyers and Clients: Diverse Conceptions of Dispute Resolution in Litigation-Linked Mediation

Tamara Relis

2004 年 2004 巻 61 号 p. 24-41,215
発行日: 2004/09/30
公開日: 2010/04/15

DOIhttps://doi.org/10.11387/jsl1951.2004.61_24

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This article derives from doctoral research into the mediation process, providing an empirically based ethnomethodological analysis of mediation through the disparate understandings, currents of perception, needs and objectives of lay and legal actors (plaintiffs, defendants, lawyers on all sides, mediators). In particular, the paper examines the materially divergent meanings ascribed to the mediation process as well as the disparate perceptions of its functions as between lay disputants and legal actor groups (including clients and their own lawyers).
Manifested in the very different things each camp aims to achieve during mediation, the findings illuminate several important paradoxes inherent in social and legal policy initiatives related to the resolution of civil disputes. On one level, the data represent a battle between legal versus extra-legal interests. Nevertheless, there is some evidence of the beginnings of lawyers' reconceptualisation of their own roles in thinking about and dealing with their cases on a more human, holistic basis. Arguably, this is a result of mediation's extra-legal world being thrust upon the legal world, regularly forcing lawyers to consider disputants' extra-legal issues as articulated during mediations. As such, the findings add to the literature on legal consciousness, civil mediation generally as well as specifically in the context of medical disputes.

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法律相談における弁護士と相談者の相互行為の機能

臨床心理学の観点を取り入れた相談の質的分析

原田杏子

2004 年 2004 巻 61 号 p. 42-59,215
発行日: 2004/09/30
公開日: 2010/04/15

DOIhttps://doi.org/10.11387/jsl1951.2004.61_42

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The aim of this study is to demonstrate the functions of the interactions of lawyers and clients in the practices of legal interview and counseling in Japan. Legal interview and counseling in Japan is considered as a form of counseling in the view of clinical psychology.
In order to gain better knowledge of these forms of counseling, actual legal interview/counseling was recorded.
The data was analyzed using grounded theory approach, which is one of the qualitative research methods. From this data analysis, 10 important functions of the interactions of lawyers and clients in the practices of legal interview and counseling were discovered: (1) understanding the situations of the client, (2) checking the lawyer's understandings, (3) sharing the purpose of applying a solution, (4) sharing the legal judgments, (5) sharing the coping strategies, (6) checking the client's understandings, (7) understanding the client's reactions, (8) negotiating the solution policy, (9) sharing the achievements of the consultation, and (10) establishing a rapport. Comparing these functions with those from previous studies of the medical field, lawyers seem to play more multiple roles as their profession.
In addition to these 10 functions, problems of interviewing skills derived from these multiple functions are discussed in the remaining part of this paper.

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大規模被害の救済と弁護士の公益性

アスベスト訴訟の展開を手がかりに

渡辺千原

2004 年 2004 巻 61 号 p. 60-76,216
発行日: 2004/09/30
公開日: 2010/04/15

DOIhttps://doi.org/10.11387/jsl1951.2004.61_60

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Although "Public Interest" has been a ambiguous and confused concept in the role models of lawyers, it is used as a comprehensive professional norm for lawyers in recent judicial reform in Japan.
In this paper, at first, I tried to classify "public interest" into three categories: public interest as a goal, the denial of private-interestedness, and the realization of law. Next, I explored those three "public interests" in the context of asbestos litigation and asbestos lawyers. Finally, class action settlement, which is one institutional context of asbestos litigation, is examined.
Asbestos litigation has become "an elephantine mass" and asbestos lawyers are recognized not as "public interest" lawyers but as "entrepreneurial lawyers". Lawyers' private-interestedness increases the social cost of compensation system and lowers lawyers' reputation. But asbestos litigation and lawyers have been and will be keys for recovery of mass disaster. They contributed to recoveries for victims and serve for public interest as a goal and the realization of law.

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弁護士と社会変革運動

法専門職の関与と倫理

大塚浩

2004 年 2004 巻 61 号 p. 77-91,216
発行日: 2004/09/30
公開日: 2010/04/15

DOIhttps://doi.org/10.11387/jsl1951.2004.61_77

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Through the case study of two social movements, "Teshima movement" and "Shareholders movement", this article tries to show characteristics of lawyers' commitment to the new types of social movements. Teshima movement is concerned with removal of industrial waste which had been dumped unlawfully to a solitary island. Shareholders movement aims to improve corporate governance in Japanese business society by mobilization of derivative suits.
Lawyers' commitment to the two social movements has two remarkable tendencies. One is the pluralistic commitment and the other is legal system oriented commitment. In each case, lawyers have become the organizer of the movements. They mobilize not only legal resource to file a suit or to go to mediation, but also mobilize multiple social resources to organize or revitalize the movement.

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法的サービスの提供と法律事務員の活動

仁木恒夫

2004 年 2004 巻 61 号 p. 92-110,217
発行日: 2004/09/30
公開日: 2010/04/15

DOIhttps://doi.org/10.11387/jsl1951.2004.61_92

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This paper analyzes the practice of legal assistants at law firms in Japan. Lawyers sometimes say that legal assistants should acquire more legal knowledge and legal skill than now for the rational management of law firms. The process of providing legal services at law firms is constructed not only of legal knowledge and legal skill, but also of many communications among lawyers, clients and legal assistants. This paper argues that, for lawyers, teamwork with legal assistants is an important part of reasonable legal practice.

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The Change of Lawyers' Culture in the Era of Globalization

Kay-Wah Chan

2004 年 2004 巻 61 号 p. 111-131,217
発行日: 2004/09/30
公開日: 2010/04/15

DOIhttps://doi.org/10.11387/jsl1951.2004.61_111

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In this paper, it will be analyzed how globalization affects the lawyers' culture and as a result has an impact on the society's legal culture. Discussion will focus mainly on the phenomenon of active capital flow around the world. The phenomenon of information flow will also be included, in the discussion relating to internal elements of lawyers' culture.
The paper begins with an analysis of the globalization of corporations and its impact on lawyers' culture, which is considered as having both internal and external aspects/elements. Globalization contributes to polarization of the profession, a change in the external aspects/elements of lawyers' culture. At the same time, due to such change and also directly due to globalization, there is weakening of the traditionally perceived elements of professionalism: independence/autonomy, commitment to public service, and having and utilizing learned knowledge and specialized skills in their work. In other words, there are changes in the internal aspects/elements of lawyers' culture. Examples are then given to demonstrate how changes in lawyers' culture contribute to changes in the society's legal culture.

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司法政策決定過程における日弁連のスタンスとその特徴

1990年以降を中心に

飯考行

2004 年 2004 巻 61 号 p. 132-146,218
発行日: 2004/09/30
公開日: 2010/04/15

DOIhttps://doi.org/10.11387/jsl1951.2004.61_132

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In this paper, the stance and character of Japan Federation of Bar Associations (JFBA) in judicial policymaking process mainly after 1990 are considered through the examination of the discussion toward increase of the legal population, disciplinary procedures of lawyers and other issues. In chapter II the overview of judicial policy making in Japan and the organization of JFBA toward legal reform are discussed. Judicial matters had been decided in accordance with the wishes of the three branches of the legal profession until 1997. JFBA has opposed to the views of the courts and the public prosecutors offices, but began to state the necessity of judicial reform in 1990 and strengthened the internal organization to promote the statement. In 1999 the Justice System Reform Council (JSRC) was established under the Cabinet and the recommendations of JSRC became the basis to reform the judicial system and JFBA supported JSRC and the judicial reform of the Cabinet. In chapter III some examples of the reform in the past are considered. And in chapter IV, the stance of JFBA to judicial policy making is discussed and pointed out that it has been directed by the governing body of JFBA. And the character of JFBA and its exclusive, powerless, public and democratic natures are analyzed. Finally, the significance of the study of bar associations is stated in chapter V.

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20世紀末における日本の大都市型女性弁護士

女性の権利との関わりにおいて

神長百合子

2004 年 2004 巻 61 号 p. 147-165,218
発行日: 2004/09/30
公開日: 2010/04/15

DOIhttps://doi.org/10.11387/jsl1951.2004.61_147

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This paper presents an analysis on the professional work and consciousness of the Japanese women lawyers who practice law in the metropolitan area of Tokyo. It is based on the research of women lawyers conducted in 1998 supported by Grant-in-Aid for Scientific Research of the Japan Society for the Promotion of Science.
The frame of the research is to see if the international trend of the female bar to commit to the women's cause, especially "Women's Rights, " or feminist perspectives has any effect on Japanese legal practice by women lawyers. My former research of 1991 (cf. Kaminaga & Westhoff, "Women Lawyers in Japan: Contradictory Factors in Status, " in Shultz & Shaw eds. Women in The World's Legal Profession, 2003) suggested that women lawyers held a very special position in Japanese society-a kind of limbo between the general low social status of Japanese women and the very elevated status of the elite profession of law. Following up this result in a larger scale with more sophisticated design, I conclude that the same picture still applied to Japanese women lawyers at the turn of the century. The status factors reflected in their everyday practice and their attitude toward the representation of women clients and the "Women's Rights" cause.

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弁護士倫理の座標

公共性と弁護士の役割

早野貴文

2004 年 2004 巻 61 号 p. 167-186,219
発行日: 2004/09/30
公開日: 2010/04/15

DOIhttps://doi.org/10.11387/jsl1951.2004.61_167

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In Japan, ethics in the professional conduct of attorneys are often perceived merely as moral principles. This is based on the historical effort by the Japanese judiciary to "remain outside of politics." The Attorneys Act of Japan defines attorneys as soldiers of freedom and democracy. However, such duty has not been recognized in practice. One perspective on the role of licensed attorneys is that they are a part of the system of politics, in that they work for the interests of the general public.
The recent judicial reform redefined the relationship between individuals and the government. It proposed a new model of law and society where self-disciplined individuals work for the common good in the public arena. The role of professional attorneys is to adopt those individuals as equal partners and support their battles for freedom and democracy. This support should be based on a harmonizing of the public interest, advocacy for the client and personal profit. Professional ethics exists to balance these three imperatives.

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Juries, Experts, and the American Legal Culture

Joseph Sanders

2004 年 2004 巻 61 号 p. 187-195,219
発行日: 2004/09/30
公開日: 2010/04/15

DOIhttps://doi.org/10.11387/jsl1951.2004.61_187

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No other developed country uses expert witnesses and civil juries in a way similar to how they are used in the United States. This note briefly describes how expert are selected and used in litigation. It then presents some of the empirical research on how well civil juries in the United States comprehend expert testimony. The note concludes with a discussion of how the system might be improved and notes the ways in which American legal structures and legal culture constrain the range of possible alternatives to the present system.

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フランス法社会学観察ノート

社会学会 (AFS) の統一と法社会学研究の動向

高村学人

2004 年 2004 巻 61 号 p. 196-207
発行日: 2004/09/30
公開日: 2010/04/15

DOIhttps://doi.org/10.11387/jsl1951.2004.61_196

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六本佳平著『日本法文化の形成』

河合幹雄

2004 年 2004 巻 61 号 p. 209-213
発行日: 2004/09/30
公開日: 2010/04/15

DOIhttps://doi.org/10.11387/jsl1951.2004.61_209

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