The Civil Procedure Code (CCP) in Japan wasｆｉ rst enacted in 1890. It was based on the German Civil Procedure Code. After World War II,
Anglo-American Civil Procedure Law influenced Japanese Civil Procedure Law through the 1948 amendments. The most recent amendments were promulgated in 1996 and the new Civil Procedure Law came into force in 1998.
2. The Structure of the New Civil Procedure Law
Law makers have pointed out the three following reasons for the reform of the Civil Procedure Law in Japan :
Firstly, the old Civil Procedure Law no longer meets the needs of litigants due to rapid and sea changes in Japanese
Secondly, under the old Civil Procedure Law trials took much too long. This is one reason why Japanese typically do not go to court to solve their disputes.
Finally, we could not solve these problems without substantial amendments to the Civil Procedure Law. Therefore, law makers have tried to consider opinions from as many sources as possible, for example the academic community, the corporate sphere, consumer organizations and so on. Taking into account these opinions, law makers have embarked on an ambitious reform of the CCP.
In this report, I want to describe the four following important points of the new Civil Procedure Law in Japan.
(1) reform of preparatory proceedings
(2) improvement of methods and proceedings of obtaining and submitting evidence
(3) introduction of a small claims procedure in the summary courts
(4) reform of appeals to the Supreme Court
These points are very important in order to ensure protection of people’s rights and a speedy trials.
3. The Reform of Preparatory Proceedings
Under the old there was a large time-span between each oral hearing session and the formal or oral hearing became a misnomer. Under the reform, in order to achieve a speedy trial, three following types of preparatory proceedings have been introduced. The purpose of these proceedings is to put issues of case management and presentation of evidence in order.
Firstly, the preparatory oral hearing (Art. 164 CCP). This proceeding is used for cases with far-reaching social ramiｆｉ cations and cases in which many parties will participate. These cases are basically suitable for open trials.
Secondly, the preparatory proceeding for formal hearing (Art. 168 CCP). This proceeding is expected to incorporate the advantages of the so-called Hearing and Settlement Method resently discussed in Japan. In this proceeding, the court can pass interlocutory judgement, the effect of the exclusion of evidence is weakend, and the proceeding is partially open. This is the most important proceeding of the three preparatory proceedings. It is difｆｉ cult to say whether the Hearing and Settlement Method will disappear in practice through this amendment.
Finally, the preparatory proceeding in writing (Art. 175 CCP). The party who lives a great distance from the court hearing the suit can use this proceeding. In this proceeding, a video-phone system can also be used.
Preparatory Proceedings have the following merits :
(1) the court can put the issues of the case in order early on.
(2) the court and the parties conｆｉ rm the issues which are to be proved later, and if a party later presents facts relevant to the issues, he must explain why he delayed in presenting such facts (Art. 93 CCP). the court must order theｆｉ rst oral hearing sessions after preparatory proceedings to examine evidence. The witnesses and parties are questioned as promptly as possible after delineating the issues and evidence.
But these proceedings also raise some problems. In particular, the preparatory proceeding for formal hearing, which is expected to be used most frequently, is done in closed court, and in this proceeding documents can be examined. To protect the principle of open trial, the code allows” access only to people which the parties or the court permits to hear the trial . It is doubtful if the principle of proceeding is applied only in the formal or oral hearing.
4. Th e Improvement of Devices and Proceedings to Obtain and
Modern industrialized society has increasingly produced disputes in which one party possesses important information and evidence while the other does not. In order to rectify this situation, the devices and proceedings to obtain and submit evidence have been improved. But the discovery system, such as that employed in the USA, has not been introduced in consideration of the abuse of this system. In the new code, the following points are improved :
First, the proceedings of orders for the production of documents has undergone substantial changes under the new code. New Art. 220 CCP provides a general obligation to produce documents in addition to the obligation under the old
Secondly, the new civil procedure code has a document identiｆｉ cation process.
Thirdly, the court can order a party to present a decisive document, when he thinks that an application of the production of documents is reasonable. But the party can present documents ‘in part’, when the documents have any part which is not related to the order.
Fourthly, the new code has ‘in camera examination’. This is an examination in which the court examines documents without opening if the documents fall under immunity.
Further inquiries or interrogatories of parties are newly introduced in order to obtain information from the opposite party outside the court (Art. 163 CCP). This is a proceeding in which, after the trial commences, parties can send written inquires to the opposite party about matters necessary to prepare for defence or prosecution of a case. To avoid the abuse of this system, the new code lists the reasons for rejection of such inquiries. There is no provision for a court to compel the opposite side to answer, however, the judge can take the conduct of refusing to respond into consideration when he hands down his judgement, or he can suggest answers to the party.
5. The Introduction of a Small Claims Procedure in the Summary Courts
In Japan the court system is not particularly accessible in small claims matters. It is necessary to solve small claims disputes in order to avoid the alienation of the public from the administration of justice. Thus, many people want to introduce a system such as the Small Claims Court System in America. Therefore, a small claims procedure has been introduced in the new Civil Procedure Law.
In this proceeding, only money claims below 300, 000 yen (approximately U. S. 2, 500 Dollars) is dealt with, and only one trial is held. Moreover, the judge should pass judgement in one day. So counterclaims are unacceptable. In the examination of evidence, only simple evidence is acceptable. The appeal of a small claims procedure is unacceptable in this summary procedure. Parties can not use this proceeding over ten times in one year in order to avoid abuse of this system.
At the start of the proceeding, only a plaintiff can choose a small claims procedure or an ordinary procedure. The defendant can only declare that he wishes to use an ordinary procedure. Also, if a plaintiff chooses the small claims procedure, the court must decide to change to the ordinary
procedure ex ofｆｉcio in the following cases :
there is no requirement of the small claims procedure ; the plaintiff will use this procedure over ten times ; service by public notiｆｉ cation is needed to summon the party ; or the court is of the opinion the case does notｆｉ t this procedure. After all, though in this procedure due process requirments are considered to be less onerous than the ordinary procedure, because the party can choose this procedure by
Now, it is desirable not to use compulsory execution in the small claims procedure. This procedure is only for small claims. So if one uses compulsory execution, he may get no money because of the costs of proceedings for compulsory execution. Therefore the court can decide when a defendant must pay his debt, or that a defendant can pay his debt in installments within three years. In this case, the court takes the defendant’s means into consideration. In addition, when he pays it in the term alloted, or without losing the beneｆｉ t of the time for the payment in installments, the court can decide to exempt him from loss for delay.
6. The Reform of Appeals to the Supreme Court
The old code had two grounds for appeals to the Supreme Court :
Firstly, a serious violation of procedural rules, such as a violation of the Constitution (Art. 395 of the old
Secondly, a violation of law or ordinance which clearly influences the judgements (Art. 394 of the old code).
In these cases, the code naturally allows appeals to the Supreme Court. Thus there are too many appeals to the Supreme Court to function as a Constitutional Court.
Therefore the new code has limited the grounds for appeals to the Supreme Court to absolute grounds for appeals to it (art. 312 CCP). Further, the system by which the Supreme Court selects cases for judgement is on the basis of a reference similar to American certiorari. As result, the Supreme Court can be expected to concentrate on its essential function as a Supreme court.
＊ Professor of Law, Ritsumeikan University.
This paper is based on lecture given at World Procedural Law Congress” Justice and Prosecuting Law in Asian Continent Recife/Brazil May 20th 1999.