法社会学
Online ISSN : 2424-1423
Print ISSN : 0437-6161
ISSN-L : 0437-6161
2012 巻 , 76 号
法曹の新しい職域と法社会学
選択された号の論文の20件中1~20を表示しています
2011年度学術大会緊急企画
全体シンポジウム「グローバル社会と法曹の職域,倫理,アイデンティティー」
  • グローバル社会と地域社会との交錯
    福井 康太
    2012 年 2012 巻 76 号 p. 5-13
    発行日: 2012年
    公開日: 2021/04/19
    ジャーナル オープンアクセス
    We held three organizers’ symposiums about “The New Field of Legal Profession and the Sociology of Law: Current Transformation of Law and Lawyers” at the JASL Annual Conference 2011. Especially, the plenary symposium called “Works, Roles, Ethics and Identity of the Legal Profession in the Globalizing Society” was the big success session of them. The purpose of the plenary symposium was to discuss issues about lawyer’s new works, roles, ethics and identity under the great legal change caused by the globalization. We imagine the “globalization” as the development of highly complex global trade system and the expansion of the multi-ethnic world society prompted by the political multi-polarization brought by the end of the Cold War and ICT (information & communication technology) innovation since 1980s. The size of financial market has been multiplied and technologically supported by ICT. Supply chains management in manufacture industries are expanded all over the world. Everywhere in the world, we can see various ethnic people. On the other hand, there remain traditional local communities where people are living as old days. The polarization between the highly globalised world society and the domestic local society has become prominent and sometimes causes conflicts. Globalization has transformed the legal system into dual structure; the globalised legal system and the traditional community legal system. On the global level, there are not only formal legal norms implemented by governmental or international authorities, but also soft laws with which we comply without any governmental legally-binding force. We have confirmed that more and more international trade arbitration and mediation has been utilized to resolve international disputes. New legal forms have forced business frameworks to change substantially. Such great changes have prompted us to address various corporate legal needs, and subsequently, lawyers’ field of work is becoming more business-oriented than ever. How to evaluate this transformation is the agenda of the plenary symposium at the JASL Annual Conference 2011.
  • 「法務部門の実態調査」の歴史を手掛かりに
    米田 憲市
    2012 年 2012 巻 76 号 p. 14-34
    発行日: 2012年
    公開日: 2021/04/19
    ジャーナル オープンアクセス
    Even after Judicial Reform in Japan which has the policy of increasing numbers of lawyers including in-house counsel, the number of in-house counsel fall short of their expectation. The mission of this article is to give a prospect whether the number of in-house counsel in Japan will increase or not after now. To response this request, a series of questionnaire surveys on corporate legal practices in Japanese corporations which have been conducted every 5 years from 1965 was analyzed. Findings from them are as follows. Firstly, in these surveys, interests to in-house counsel have been increased consistently from mid of 1970’ to now. The questions about in-house counsel are increasing and tend to treat more details of it. Secondly, though the system to produce corporate legal staffs in Japanese corporations has depended on corporate members who are not qualified as the human resource, some fundamentals of it have been transforming nowadays. The result of recent surveys show, (1) Human resource management in Japanese corporations have been changed to seek to adopt quickly to their business, (2) The request to legal staffs has been upgrading on legal knowledge for their business, and then (3) Legal profession as a new member is expected with upgraded legal knowledge for response to their circumstances. It takes over 40 years the development of corporate legal departments in Japan, so it maybe proper to say that we should take more time to observe this trend.
  • ユーザー(特に企業)は弁護士にどのような役割を期待するか
    佐野 晃生
    2012 年 2012 巻 76 号 p. 35-41
    発行日: 2012年
    公開日: 2021/04/19
    ジャーナル オープンアクセス
  • Robert P., III Bartlett, John C. Lee, 阿南 衆大, 福井 康太
    2012 年 2012 巻 76 号 p. 42-88
    発行日: 2012年
    公開日: 2021/04/19
    ジャーナル オープンアクセス
    This article provides a comparative perspective of how business lawyers have come to represent a critical segment of the legal services industry within the United States. While lawyers with U.S. corporate clients have long played the role of “counselor” and “planner,” several regulatory and legal developments during the 1970s and 1980s resulted in a marked demand for strategic legal advice and deal-making services among U.S. businesses. At the same time, globalization provided U.S. businesses with new opportunities to pursue overseas transactions, in the process allowing U.S. lawyers to export a distinctly American model of legal counsel. Both trends helped make transactional services an increasingly important―and lucrative―domain for U.S. lawyers, prompting the emergence of both global, transaction-oriented “megafirms” and bourgeoning in-house legal departments. Evaluation of the U.S. legal services market also reveals, however, that the same forces that gave rise to its current shape have recently begun to undermine it. As cost-conscious in-house lawyers seek to leverage globalization and technology to reduce expenditures on outside legal counsel, U.S. business lawyers have had to compete all the more intensely for those areas of business law that have remained relatively immune from these pressures, in particular those focusing on capital markets and M&A. The result, as reflected in a recent wave of U.S. law firm mergers and liquidations, has been considerable dislocation within the U.S. legal services industry as firms choose (and have chosen for them) whether they can compete within these more lucrative areas of business law. This process of continual transformation of the U.S. legal services industry thus complicates attempts to discern its ultimate shape, posing significant challenges for U.S. law firms, U.S. lawyers and U.S. legal education more generally.
  • 下條 正浩
    2012 年 2012 巻 76 号 p. 89-102
    発行日: 2012年
    公開日: 2021/04/19
    ジャーナル オープンアクセス
    Lawyers have been handling purely domestic legal matters as sole practitioners in many countries around the world. However, in recent years, as commercial transactions have spanned international borders and have increased in size, the legal work done by lawyers has also become global in nature, with practices expanding to cover the laws of several countries at once. As a result, law firms have adapted in order to accommodate such changes. Several firms with their origins in America and Great Britain have established offices worldwide, and in doing so they have become truly global law firms, with so many lawyers scattered across so many different offices in different countries that it is no longer appropriate to call such firms “American” or “British.” However, when legal work is conducted globally, lawyers may encounter potential conflicts in the ethical rules of the country in which they work in comparison to norms of their home countries. Solving such a deontological problem will be difficult. As legal work is increasingly globalized, disparities between solo practitioners and the lawyers working for large, international law firms in terms of skills, income, etc. have become more stark than they were before. However, because all lawyers should share a common set of core values, such as a duty to protect confidentiality and a duty to avoid conflicts of interests, efforts should be made to try to keep the legal profession unified in relation to its core values.
  • 濱野 亮
    2012 年 2012 巻 76 号 p. 103-115
    発行日: 2012年
    公開日: 2021/04/19
    ジャーナル オープンアクセス
    The author presents four sociological conditions which determined the development and pattern of handling of legal matters for businesses in Japan since the pre-war period. Firstly, the functions and roles of attorneys in corporate and business world were limited and underdeveloped. Non-lawyers played various and important roles within and outside companies and corporations to handle legal matters for business. Secondly, some companies retained a specific law firm continuingly as their legal adviser and litigator in case of litigation. They were known as “komon-bengoshi.” [retained attorney as counsel]. Thirdly, large corporations began to establish a legal department staffed mainly with non−lawyers in the 1960s. Fourthly, a limited number of corporate law firms specializing in foreign and international legal matters for corporate clients were founded in Tokyo. Since the mid−1990s, changes in the above conditions have begun to emerge. More newcomers into the private legal practice start their profession in Tokyo. Tokyo has begun to absorb more young attorneys. The largest law firms in Tokyo have accelerated their growth in size since the late 1990s. Medium-sized and large law firms also have begun to increase their number now. The numbers of Gaikokuho-jimu-bengoshi [registered foreign lawyer] and Japanese attorneys employed by business corporations and national government agencies have also increased. The author suggests that these changes reflect a great transformation in corporate clients’ legal needs in the context of structural change of the Japanese economy.
企画委員会シンポジウム1 「司法過疎地の法的ニーズと弁護士の新しい職域」
  • 飯 考行
    2012 年 2012 巻 76 号 p. 116-124
    発行日: 2012年
    公開日: 2021/04/19
    ジャーナル オープンアクセス
    This is a preliminary study toward a theory of regional justice and considers articles of the mini symposium titled “Legal needs of the areas in short of legal services and the new sphere of attorneys,” which was held at the 2010 Japan Association of Sociology of Law annual meeting. Regional legal practice is getting popular and academic attentions by the treatment to cope with a shortage of legal services, which includes a setting up of the Himawari law firm and the Japan Legal Support Center (hereinafter JLSC), and the expansion of attorney population after the 1990s. We can get a glimpse of the actual state and function of the regional legal service by reading articles of Matsumoto (a pioneer of the Himawari law firms who has made the firm widely known to the public), Tomita (the first generation staff attorney at the JLSC who is known for her collaboration with welfare service), Kosai (a socio−legal scholar who has made research on the legal profession and advice seeking residents at southern islands of Kagoshima prefecture) and Ikenaga (a researcher on the worldwide reforms on access to justice). This paper finally discusses that a regional law and justice as well as welfare and medical care can shed light on the function to advance QOL of the local community and residents by supporting their lives and human relations, which had often been missed in the traditional Japanese legal studies.
  • 弁護士過疎対策の10年
    松本 三加
    2012 年 2012 巻 76 号 p. 125-140
    発行日: 2012年
    公開日: 2021/04/19
    ジャーナル オープンアクセス
    The first Himawari Law Office was opened by Japan Federation of Bar Associations in Iwami, Shimane Prefecture in the year 2000. Ever since, Himawari Law Offices have been established throughout Japan. The author was attracted attention as the first lawyer to be sent to a Himawari Law Office as part of training newly admitted attorneys, and has continuously been involved in the development of Himawari Law Offices. The author attempts to raise a few issues regarding Himawari Law Offices by reflecting on their 10 years of practice and an overview of how the system dealt with lawyer shortages in the rural areas of Japan. This paper focuses on lawyers who are interested in serving for rural areas in Japan and analyzes how to keep quality of the lawyers, for the lawyers should deliver legal services appropriately in the rural areas. And The author is currently practicing at a law firm established in Fukushima Prefecture. The law firm encountered the great earthquake disaster that hit northeastern Japan on March 11, 2011. The earthquake disaster devastated the coastal areas, which, because of the shortage of lawyers, Himawari law offices were being strategically established. This paper also mentions the role of lawyers in the earthquake disaster, especially of lawyers belonging to the Himawari law offices in the devastated areas, which mission is to serve the public good.
  • 司法と福祉の連携可能性
    冨田 さとこ
    2012 年 2012 巻 76 号 p. 141-157
    発行日: 2012年
    公開日: 2021/04/19
    ジャーナル オープンアクセス
    Japan Legal Service Center (Houterasu) started services in October 2006, and established law offices all over the country. The attorneys (called Staff Attorneys) have been making efforts in these offices to provide any persons, especially those who cannot reach law offices by themselves “access to justice” by making relationships between other agencies. It is said that to make relationships between other agencies, ―like welfare agencies, local autonomous bodies etc,―, is the function of the Staff Attorneys of Houterasu. They must do their best to resolve disputes by using relationships. The author is one of the first members of the Staff Attorneys, and took a job on Sadogashima Island, which is a rural area without sufficient legal services. This paper focuses on the process of the building up relationships with other agencies and how to access the people who don’t have the ability to contact the law office. This paper also discusses the needs and functions of relationships between welfare agencies and attorneys, in addition to reporting the activities of other staff attorneys in the country.
  • 鹿児島県島嶼の事例より
    小佐井 良太
    2012 年 2012 巻 76 号 p. 158-171
    発行日: 2012年
    公開日: 2021/04/19
    ジャーナル オープンアクセス
    In this paper, I examine legal needs and legal services in rural areas. We conducted a survey on Tanegashima and Yakushima islands of Kagoshima prefecture. Based on findings from the survey, the following suggestions can be drawn. First, there is a variety of legal needs in rural areas, such as divorce, inheritance and trouble with on−line business. Second, in rural areas, clients are very nervous about privacy. Therefore, it is necessary the legal advice considers privacy enough, and to perform it. Third, there is a client preferring to talk with not local but “outside” lawyer. It is necessary for the opportunity of the legal advice to be provided with plural channels. Fourth, information about the use of the lawyer and legal services is too short. People in rural areas are very anxious about a lawyer’s fee. Fifth, there is some kind of factors to disturb the continuous lawyer’s use. Finally, there is the person who can talk with nobody until legal advice. Distrust of administration exists in the background. This paper argues, therefore, that the role and the function of the legal advice are very important especially in rural areas, and that the models of providing legal services in rural areas should be constructed as minimum standard in Japan society. For expansion of the access to justice, the role and the function of the legal advice should be reexamined.
  • コモンロー国家と日本の比較考察
    池永 知樹
    2012 年 2012 巻 76 号 p. 172-189
    発行日: 2012年
    公開日: 2021/04/19
    ジャーナル オープンアクセス
    Globalization has enabled the most specialized legal services for large corporate client sectors especially in common law jurisdictions. On the contrary, legal services in rural, regional and remote areas have generally been declining for the lack of resources and funding. To overcome this problem and realize access to justice in rural area, common law jurisdictions have taken special measures for decades. These measures are generally divided into three categories: legal aid funded by government, nonprofit organization (NGO), and pro bono. These three groups have collaborated with each other to maximize legal services in rural area. However these three groups have suffered from “trade off” problem at the same time. That means the legal aid will be reduced if pro bono is activated a lot, for example. Under this historical context, Japan Legal Support Center that provides both civil and criminal legal aid funded by government was established in 2006 in addition to recent growing activity of nonprofit organizations in Japan and lawyers’ traditional pro bono activity. This paper analyzes the multiple forms of legal services in rural area and future issue from the point of comparison between common law jurisdictions and Japan.
  • 櫻井 光政
    2012 年 2012 巻 76 号 p. 190-197
    発行日: 2012年
    公開日: 2021/04/19
    ジャーナル オープンアクセス
    The number of lawyers in Japan has increased dramatically in the recent 10 years. In addition, the issue of poor legal access in rural areas has significantly improved. The judicial reform was not only a governmental reform from the top-down, but also movements from the bottom-up with self-reform by lawyers. In dealing with the issue of improving legal access, it was revealed that users seldom voice their own requests. As such, lawyers of Bar Funded Law Offices (Himawari Fund Law Offices) and staff attorneys of The Japan Legal Support Center (The JLSC) who were dealing with the issue pursued collaboration with local governments. However, now, the numbers of users of these services have increased manifold and their demands have also diversified. Lawyers have yet to fully respond to these demands. In order to expand legal access, we need to develop activities such as pro bono in addition to government-funded legal aid, which will still play a pivotal role. We need to expand and develop The JLSC, nurture and strengthen the volunteer sector, and also have the Japan Federation of Bar Associations and each of the Bar Associations proactively deal with the issue. Also, we should receive useful input from scholars studying the issue.
企画委員会シンポジウム2 「さまざまな法律専門職の新しい職域 ──競争と協調とのはざまで──」
  • 上石 圭一
    2012 年 2012 巻 76 号 p. 198-204
    発行日: 2012年
    公開日: 2021/04/19
    ジャーナル オープンアクセス
    This paper aims to explain the aim of this symposium. Since the new system of nurturing legal professions was introduced, the numbers of practicing attorneys are rapidly increasing. Under such conditions, it is reported many new attorneys feel hard to be employed by law firms. They need to look for new fields in which to enter. In addition, quasi-legal professions were admitted to expand their jurisdictions. For example, a judicial scrivener was admitted to serve as a representative at summary courts under a certain condition. It means competition between new lawyers and judicial scriveners will be fierce. On the other hand, there is a new trend to collaborate among legal professions including quasi-legal professions. For example, a NPO whose group members including practicing attorneys, judicial scriveners, and tax lawyers, voluntarily provide consultation services in rural areas. Then, where quasi-legal professions will go in the near future? In order to survive this harsh competition from practicing attorneys, they need to develop their uniqueness and get advantages over attorneys. Then, what uniqueness do they have? What advantages do they have over practicing attorney? And what is their big challenge to survive intensifying competition? In this symposium, these topics will be presented by presenters.
  • 吉岡 すずか
    2012 年 2012 巻 76 号 p. 205-218
    発行日: 2012年
    公開日: 2021/04/19
    ジャーナル オープンアクセス
    Since legal specialist fields are fractionalized according to qualification, the relationship between lawyers and other legal professionals, such as patent lawyer, judicial scrivener, licensed tax accountant, administrative scrivener, etc., is likely to be discussed as a problem of area of responsibility. However, the party who needs legal assistance is not necessarily interested in the legal specialty but in whether the problem can be settled by the appropriate legal professional. Recently, competition and resistance for establishing an area of responsibility between lawyers and other legal professionals has been intensifying; on the other hand, they have already been engaging in collaborative work on a daily basis. However, little attention has been given to collaborative work and little has been discovered in terms of what could be accomplished and maintained through such collaboration between lawyers and other legal professionals. From the viewpoint of the needs of people, cooperation between lawyers and other legal professionals must lead to the provision of a “one−stop service” that provides legal services to fulfill the varied requirements of people. Considering two patterns of “one-stop service,” namely, office communalization and joint holding consultation, this paper conducts an investigation of what collaborative work between lawyers and other legal professionals could accomplish and maintain and in which direction could such collaboration progress for the provision of effective legal services.
  • 協働から競争へ
    久保山 力也
    2012 年 2012 巻 76 号 p. 219-238
    発行日: 2012年
    公開日: 2021/04/19
    ジャーナル オープンアクセス
    How is the future of “Non-Attorney-Lawyer”? Now, the supply system of the legal service is instable. It is now the era of reconstruction or integration of “Non-Attorney-Lawyers” because of so many changes not only in the field of administration of justice like the adaptation of new law school system or increase in the numbers of attorneys, but also in the development of an information technology and the internal changes of “Non-Attorney-Lawyer.” Is it possible to find the “third way” instead of unification with attorney or not? “Non-Attorney-Lawyers” express themselves as “Lawyers with their lives” or the “Lawyers in the town.” Now they are in competition with attorneys, even beyond the scope of article 72 of attorney’s law, in almost every field. It is a very serious situation for “Shihoshoshi Lawyers,” which is concerned with both inside and outside problems. “Shihoshoshi Lawyers” have lost their main business called as “Registration.” This paper discusses and provides an overview of “Non-Attorney-Lawyers” or “Shihoshoshi Lawyers” using a wide range of statistics available. “Non-Attorney-Lawyers” are in the “Whirlpool” of fluctuation apart from the ideal of judicial system reformation. At last, it is very difficult to maintain the national license by political action. What “Non-Attorney-Lawyer” says anything and does now?
  • 矢箆原 浩介
    2012 年 2012 巻 76 号 p. 239-250
    発行日: 2012年
    公開日: 2021/04/19
    ジャーナル オープンアクセス
    The fact that there are practicing attorneys in an area does not mean legal services are enough provided and meets citizens’ needs. Ordinary people have an image that lawyers and courts are fearful and difficult to access. But as a shihoshoshi lawyers, I want to change such a situation. To this end, I have tried to make myself more accessible to a wider range of people, to improve efficiency in business and to enhance client satisfaction. In this process, I have worked with other legal professionals and with various organizations, if necessary. The important thing is that legal professionals make their effort to meet citizens’ needs. In order to achieve this goal, lawyers are required not only to raise their legal expertise, but also to raise their communication skills and to promote collaboration with other professionals.
  • 山上 博信
    2012 年 2012 巻 76 号 p. 251-254
    発行日: 2012年
    公開日: 2021/04/19
    ジャーナル オープンアクセス
    The aim of this article has two folds: one is comparing the practice of shihoshoshoshi lawyer, judicial scrivener, and gyoseishoshi lawyer, administrative scrivener. Gyoseishoshi lawyer shares its origins of shihoshoshi lawyer, but nowadays, both lawyers progress in different ways. The other is to reconsider what ordinary people really want for a lawyer when they say to get a lawyer in the middle. And this paper will revisit the significance of representing both parties.
  • 下澤 悦夫
    2012 年 2012 巻 76 号 p. 255-258
    発行日: 2012年
    公開日: 2021/04/19
    ジャーナル オープンアクセス
    From general and broad point of view, Suzuka Yoshioka and Rikiya Kuboyama report on the competition and cooperation developed between attorneys and other legal professionals in terms of each professional duty and area of occupation. Yoshioka refers to cooperation as positive aspect, and Kuboyama approaches to the issue from the aspect of competition and conflict. The reports by Kousuke Yanohara and Hironobu Yamagami are based on their actual experiences as administrative scrivener and judicial scrivener. Each professional has to compete and struggle for survival inside one’s own area due to the increase of the population in each legal professional. In the meantime, the expansion of the gap between urban area, where legal professional is overpopulated, and unpopulated area of legal professional is another issue. Concerning these issues, it is obvious that attorneys tends to go into the area out of social conflict resolution, on the contrary, other legal professionals tends to find the market in the area of social conflict resolution. These conditions have caused hot competition and lack of cooperation among each professional area. In adjusting each occupational area, it is a must to take the point of view that which professional area satisfies the needs of the residents as our users.
論説
  • 国籍法違憲判決の文脈的分析
    秋葉 丈志
    2012 年 2012 巻 76 号 p. 259-292
    発行日: 2012年
    公開日: 2021/04/19
    ジャーナル オープンアクセス
    This paper analyzes the constitutional decision making process of Japanese courts from the perspective of judges’ personal attitudes toward constitutional and legal interpretation. Further, the paper analyzes the various organizational influences upon judges. Thus, the paper sees the court and its decision making in the dynamic, political context of human behavior and institutional relationships. In particular, this paper centers its analysis on the Japanese nationality case of 2008. The Japanese Supreme Court, in a rare exercise of its power of judicial review, held a portion of the law unconstitutional. This paper focuses on the Tokyo District Court decision which essentially served as a draft for the Supreme Court decision, and finds that the judge of the Tokyo District Court seems to have been instrumental in bringing out this case. This judge has been in an extensive “dialogue” with the more conservative Tokyo High Court over various areas of administrative law where the discretion of the government and individual rights had come into conflict. His decisions have clarified the attitudinal conflict between judges in these areas. In addition to personal attitudes, the paper finds that organizational influences had an effect on the judges’ decision making. In particular, the differences between the Tokyo High Court and the Tokyo District Court, the composition of the court that handled the cases (the decisions were written by panels of 3 judges), the career track of the judges, and the trend within the Supreme Court all seems to have influenced the judges. On these points this paper presents a preliminary analysis, and a systematic evaluation which applies this analytical perspective to a wider set of data shall be a promising field of inquiry for the study of law and politics in Japan.
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