The Japanese Legal System

Professor Keisuke Abe

An introduction to the legal system of Japan. Among the general topics considered are

the civil-law tradition and its Japanese reception, the sources of Japanese law, the

constitutional framework and its implications for private law, and the role of law in the

Japanese society. The course also examines the ongoing debate on constitutional

revision, a debate that involves questions as to the appropriate role for Japan in

international peacekeeping, as well as the need to expand or adjust the protection of

fundamental rights and liberties to “suit the times.”

Although the course is not designed to provide detailed knowledge of procedural or

substantive Japanese law, it will draw on cases and problems from constitutional law, torts,

criminal law, family law, and employment law.

The Japanese Legal System Professor Keisuke Abe

SAMPLE SCHEDULE Monday, June 2

10:00-11:50 a.m.

Monday, June 2

1:30-3:50 p.m.

Tuesday, June 3

10:00-11:50 a.m.

●History of Japanese Law

●Fundamental Principles of Constitutional

Law

●The Court System

●Judicial Review

●Renunciation of War

・Sakata case

・Ito case

●Debate on Constitutional Revision

●Equality

・Anonymous v. Anonymous

・Anonymous v. Japan

●Freedom of Religion

・Kakunaga case

・Nakaya case

●Freedom of Expression

・Koyama case

・Ishii case

Wednesday, June 4

10:00-11:50 a.m.

Thursday, June 5

10:00-11:50 a.m.

Friday, June 6

10:00-11:50 a.m.

●Social Rights

・Asahi case

●The Civil Code

●General Rules of Tort Law

●Negligence

●Employer’s Liability

・Udagawa case

●Products Liability

●Family Law

・Inouye case

・Anonymous case

●Contemporary Issues in Japanese Law

・Dispute Resolution in Japan

・Law and Bioethics in Japan

・Takada v. Mayor of Shinagawa

* Some of the subjects listed above may not be covered in detail so that more time can be spent on discussing the topics that match the

students’ interests.

The Japanese Legal System

Santa Clara University School of Law Institute of International and Comparative Law

Professor Keisuke Abe

Seikei University Faculty of Law

Table of Contents

I. Reference ・ The Constitution of Japan, 1946* 1 ・ Constitution of the Empire of Japan, 1889 [Meiji Constitution]* 8 II. Constitutional Law: “Renunciation of War” Clause ・ Japan v. Sakata** 13 ・ Sakata v. Japan** 15 ・ Ito v. Minister of Agriculture, Forestry and Fisheries** 16 ・ Minister of Agriculture, Forestry and Fisheries v. Ito** 19 ・ Uno v. Minister of Agriculture, Forestry and Fisheries** 20 III. Constitutional Law: Freedom of Religion ・ Kakunaga v. Sekiguchi** 20 ・ Japan v. Nakaya** 22 IV. Constitutional Law: Freedom of Expression ・ Koyama v. Japan* 24 ・ Ishii v. Japan* 29 V. Constitutional Law: Social Rights ・ Asahi v. Minister of Health and Welfare* 32 VI. Torts: Products Liability ・ J. Mark Ramseyer, Products Liability Through Private Ordering** 38 ・ Ministry of International Trade & Industry, Guide to Product Liability Law** 39 VII. Torts: Negligence ・ Japan v. Udagawa* 41 VIII. Family Law: Divorce ・ Inouye v. Inouye* 45 ・ Anonymous v. Anonymous** 48 IX. Judges, Politicians and Bureaucrats: Judicial Independence in Japan

・ J. Mark Ramseyer, Judicial (In)dependence in Japan** 50 ・ John O. Haley, Judicial Independence in Japan Revisited** 52 X. Dispute Resolution: Disputes in Modern Japan ・ Steve Lohr, Tokyo Air Crash: Why Japanese Do Not Sue** 56 ・ Susan Chira, If You Insist on Your Day in Court, You May Wait and Wait and Wait** 56 ・ Frank K. Upham, Law and Social Change in Postwar Japan** 57 XI. Dispute Resolution: Competing Explanations ・ Takeyoshi Kawashima, Dispute Resolution in Contemporary Japan** 59 ・ John O. Haley, The Myth of the Reluctant Litigant** 61 XII. Case Studies ・ Kono v. Company X et al. (Fukuoka Sexual Harassment Case)** 63 ・ Awaji Takehisa, The HIV Litigation and Its Settlement 66 ・ Japan v. Tokunaga (Tokai University Hospital Euthanasia Case)*** 79 ・ Robert B. Leflar & Futoshi Iwata, Medical Error as Reportable Event, as Tort, as Crime

83 XIII. Appendix: Selected Cases and Articles ・ Strength of Political Groups in the Diet 99 ・ Profile of the Prime Minister 100 ・ Abe Cabinet 101 ・ Supreme Court of Japan 102 ・ CIVIL LITIGATION IN COMPARATIVE CONTEXT (Oscar G. Chase & Helen Hershkoff eds.,

2007) 109 ・ Anonymous v. Anonymous 122 ・ Jun Hongo, Bar to Kids’ Citizenship Ruled Illegal 130 ・ Anonymous v. Japan 131 ・ Anonymous v. Anonymous 148 ・ Keisuke Mark Abe, Separation of Church and State in Japan 157 ・ Yoshiaki Sato, Immigration Law and Policy of Japan in the Age of East Asian

Community-Building 167 ・ Philip Brasor, Entertaining the Idea of Surrogate Mums 173 ・ Pravda, Japanese Couple Not Allowed to Register Twins Born to US-Based Surrogate

Mother as Their Own 174 ・ Takada v. Mayor of Shinagawa 175 ・ Civil Code (Excerpts) 182 ・ Products Liability Act 188 * From HIDEO TANAKA, THE JAPANESE LEGAL SYSTEM: INTRODUCTORY CASES AND MATERIALS (1984). ** From JAPANESE LAW IN CONTEXT: READINGS IN SOCIETY, THE ECONOMY, AND POLITICS (Curtis J. Milhaupt et al. eds., 2001). *** From READINGS IN COMPARATIVE HEALTH LAW AND BIOETHICS (Timothy Stoltzfus Jost ed., 2001).