Law of Japan
This was due to the willingness of the Japanese to borrow aspects of the culture of continental civilisations, which was achieved mainly via adjacent countries such as the Korean kingdoms rather than directly from the Chinese mainland empires.
[3] Two of the most significant systems of human philosophy and religion, Confucianism (China) and Buddhism (India), were officially transplanted in 284–285 and 522 AD respectively, and became deeply acculturated into indigenous Japanese thought and ethics.
The external factors were the continuing political instability and turmoil in Korea, as well as the struggle for central hegemony amongst the Chinese dynasties, kingdoms, warlords, invasions and other quarrels.
Glimpses of the law regulating people's social lives may be guessed at by considering the few contemporary general descriptions in Chinese historical books.
The most noted of these is The Record on the Men of Wa, which was found in the Wei History, describing the Japanese state called Yamatai (or Yamato) ruled by the Queen Himiko in the second and third centuries.
A clan comprised extended families and was controlled by its chief, who protected the rights of the members and enforced their duties with occasional punishments for crimes.
It can also be asserted that this whole legal system was ideologically founded on the indigenous postulate which adhered to the shamanistic religio-political belief in polytheistic gods and which was called kami[8] and later developed into Shintoism.
[10] These ritsuryō positions would be mostly preserved until the Meiji Restoration, although substantive power would for a long time fall to the bakufu (shogunate) established by the samurai.
Most such laws sought to improve the military and economic power of the warring lords, including instituting the rakuichi rakuza (楽市・楽座) policy, which dissolved guilds and allowed some free marketplaces,[11] and the principle of kenka ryōseibai (喧嘩両成敗), which punished both sides involved in brawls.
[16] Crimes punished include forgery, harboring runaway servants, abandonment of infants, adultery, gambling, theft, receiving stolen goods, kidnapping, blackmailing, arson, killing and wounding.
[10] Because official treatment was often harsh, villages (mura) and the chōnin often resolved disputes internally, based on written or unwritten codes and customs.
[17] At the beginning of the Meiji Era (1868–1912), the Japanese populace and politicians quickly accepted the need to import western legal system as part of the modernization effort, leading to a rather smooth transition in law.
[27] While historical aspects remain active in the present, Japanese law also represents a dynamic system that has undergone major reforms and changes in the past two decades as well.
[48] Article 1 of the Civil Code, in the General Part (総則), emphasized public welfare, prohibited the abuse of rights, and required good faith and fair dealing.
[48] For example, good faith and fair dealing was used to justify piercing the corporate veil, protecting tenants from evictions in certain cases, and developing the doctrine of unfair dismissal under employment law.
[52] Commercial contracts between Japanese companies are often brief, with parties preferring to leave certain possibilities open and negotiate for a mutually acceptable response instead of setting out detailed terms in writing.
[53] Courts sometimes prevent the termination or non-renewal of contracts when there is a strong reliance interest at stake, citing the duty to act in good faith.
[48] In such cases, the law contains rules that balance the interests of the obligor, the obligee, and third parties, based partially on their states of mind and whether they acted in good faith.
[54] In a 1990 article,[56] Takao Tanase posited that the calculated structuring of governmental and legal processes, not a cultural propensity toward harmonious social relations, accounted for the persistently low litigation rate in Japan.
The litigation rate was low, Tanase said, because Japan provides non-litigious methods of assessing fault, advising victims, determining compensation, and ensuring payment.
[56] Non-litigious dispute resolution mechanisms, mediation services, consultation centers operated by governments, the bar association, and insurance companies.
The Japanese judiciary also works hard at developing clear, detailed rules that guarantee virtually automatic, predictable, moderate compensation for most accident victims.
In the United States in the late 1980s, according to two big studies of motor vehicle accident tort claims (not just lawsuits), payments to lawyers equaled 47% of the total personal injury benefits paid by insurers.
Despite this emphasis on tenant rights, the government exercises a formidable eminent domain power and can expropriate land for any public purpose as long as reasonable compensation is afforded.
This power was famously used in the wake of World War II to dismantle the estates of the defunct peerage system and sell their land to farmers at very cheap rates (one historical reason for agriculture's support of LDP governments).
[66] The Criminal Procedure Code was also drastically amended after World War II, under American legal influence, to guarantee due process and largely adopting an adversarial system.
However, plans for reform were controversial because they addressed delicate issues, such as the introduction of protective measures to Criminal Law, juvenile punishment, or the abolition of the practice of imprisoning defendants in police cells.
In addition, a person cannot incur criminal liability if the act was lawful at the time it was committed, and cannot be subject to conviction for the same crime twice (double jeopardy).
Further, since the Japanese procedural system does not include pre-sentence investigations and reports by probation officers, evidentiary data bearing on the sentencing must be presented by the parties to the case, to be supplemented by the court's own inquiries.
[68] If reasonable grounds to detain a suspect exist, the judge must promptly issue a warrant or order of detention at a maximum of 10 days before prosecution is instituted.
