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Social Science Japan September 2010Page 2

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Over a year has passed since the lay judge system, the most significant reform ofcriminal proceedings in Japan since the end of the occupation era, came intoforce on May 21, 2009. More than 3,000 ordinary citizens served as judges incriminal trials during the first year of the new system (Nihon Keizai ShimbunMay 21, 2010). What are the purposes of the lay judge system, why was it imple-mented at this point, and what changes will the new system bring about inJapanese society? Several experts address these questions in this issue of SSJ.

First, Sato Iwao provides us with an overview of the lay judge system, settingout the context of the introduction of the new system and its aims. ShinomiyaSatoru then analyses the significance of the lay judge system and how it operatesfrom his practical point of view based on his experience as a practising attorneyand a former member of the Lay Judge System and Criminal Justice Task Forceof the Governmental Head Office on Justice System Reform. Referring to Toc-queville, Uno Shigeki evaluates the relationship between the lay judge systemand democracy in political and historical contexts. Kawai Mikio discusses howthe criminal justice system will change due to the participation of lay judges.Finally, by presenting the history and the consequences of the Jury Act back inthe Taisho period, Dimitri Vanoverbeke adds great insights to our understand-ing of past and present citizen involvement in the Japanese legal system.

In the “Research Report” section, Kudo Akira, emeritus professor of economicsat the University of Tokyo and a former member of the faculty of the Institute ofSocial Science, discusses his interests in, and research on, the history of Japanese-German/Euro-Asian relations. Owan Hideo, who joined the Institute of SocialScience in September 2009, presents his recent research on invention remunera-tion policies in Japanese companies and the debate over judicial oversight ofthose policies.

In addition to the above mentioned essays and presentation abstracts of the ISS Contemporary Japan Group (CJG), we present the updated webpage of theCJG, as well as more than twenty recently published books written by membersof our research staff at the ISS.

Contents

Lay Judge System

Sato Iwao Emergence of Citizen Participation in Trials in Japan: Background and Issues ...........p.3

Shinomiya Satoru Defying Experts’ Predictions, Identifying Themselves as Sovereign: Citizens’ Responses to Their Service as Lay Judges in Japan.......................................................p.8

Uno Shigeki The Lay Judge System as Viewed from a Political Context ....................................p.14

Kawai Mikio The Impact of the Lay Judge System on Japanese Criminal Justice ......................p.18

Dimitri Vanoverbeke The Taisho Jury System: A Didactic Experience.......................................p.23

ISS Research ReportsKudo Akira A Personal Historiography of Japanese-German/Euro-Asian Relations ...................p.28

Owan Hideo Incentive Pay or Windfalls? A Change in Invention Remuneration Policies among Japanese Firms ...............................................................................................................p.32

Sato Iwao

Social Science Japan September 2010

Sato Iwao is a Professor of the Sociology of Law

at the Institute of Social Science, the University

of Tokyo.

Institute of Social ScienceUniversity of TokyoHongo 7-3-1Bunkyo-ku, Tokyo [email protected]

1. Japan’s Other Regime Change in 2009

Nearly one year has passed since the lay judgesystem (saiban-in seido) went into effect on May21, 2009. The lay judge system is a system inwhich six lay judges (saiban-in) chosen fromamong the general public form a collegial bodywith three professional judges to determine guiltor innocence, apply laws and review sentences inserious criminal cases. The first trial in which layjudges participated began on August 3, 2009 inthe Tokyo District Court, and a verdict was hand-ed down on August 6. In the twelve months lead-ing up to May 20, 2010, decisions for 530 defen-dants were handed down in trials with lay judgeparticipants in courtrooms throughout the nation.

This is the first time that Japan has adopted a sys-tem of citizen participation in trials (i.e., directpopular participation in criminal proceedings)since the end of World War II. As John Stuart Mill,Alexis de Tocqueville and many later advocates

have since pointed out, citizen participation in tri-als is not only an important component of the jus-tice system, it holds a great deal of significancefor the nature of a country's political systems andpolitical culture. The regime change in the sum-mer of 2009, which was featured in the last issueof the SSJ (issue 42), was a highly visible andmajor reform in Japanese politics. The adoption ofthe lay judge system, which also occurred in 2009,may not have been as attention-getting as thechange in government, but over the long-term, itpossesses the latent potential to have a profoundand wide-ranging impact on Japanese society andpolitics. In short, it is Japan's other regimechange. This issue focuses on the lay judge sys-tem following on the heels of last issue's regimechange feature because we decided to zero in onthis latent potential.

In addition to introducing this issue's special fea-ture in this article, I will briefly describe thecourse of events leading up to the current layjudge system as well as what was chosen (andwhat was left out) in designing this system. I willalso mention several points that I think are impor-tant for the future development of the lay judgesystem.

2. Course of Events Leading to the Adoption ofthe Lay Judge System and Its Features

For a time before World War II (1928 - 1943),Japan had a jury system that was used for somecriminal trials (for more on this, see the article byVanoverbeke in this issue); however, this systemwas suspended due to the war, after which a sys-tem of direct popular participation in criminalproceedings ceased to exist. Immediately after theend of World War II, there was a debate aboutreinstituting the jury system as part of Japan'sdemocratic reforms, but this never came tofruition. After that, lawyers' groups, citizens'groups and some academics continued to issuepolicy proposals and campaign for the reinstate-ment of the jury system, but none of these actions

Emergence of Citizen Participation in Trials inJapan: Background and Issues

held enough sway to bring the system back. Untilthe late 1990s, most people never thought a jurysystem or equivalent system of citizen participa-tion could become a reality in the near future.However, the situation changed drastically in afew short years.

The discussions held by the Justice SystemReform Council (JSRC), which was established bythe Keizo Obuchi administration in June 1999,contributed directly to the eventual adoption ofthe lay judge system (see Sato 2002 for more onthe political and social context of the establish-ment of the JSRC). The mission of the JSRC was toclarify the role that the judicial system shouldplay in Japanese society in the 21st century andpropose the fundamental policies required forjudicial reform. The JSRC debated a wide-rangeof judicial reform issues including increasing thenumber of lawyers, establishing a professionallaw school system, accelerating civil and criminaltrails and reforming the administrative litigationsystem, but one of their central issues was realiz-ing citizen participation in trials.

On June 12, 2001 the JSRC presented its finalreport entitled Shiho Seido Kaikaku Shingikai Iken-sho: 21-seiki no Nihon o Sasaeru Shiho Seido (Recom-mendations of the Justice System Reform Council:For a Justice System to Support Japan in the 21stCentury) (JSRC 2001) to then-prime ministerJunichiro Koizumi. The report proposed: "A newsystem should be introduced in criminal proceed-ings, enabling the broad general public to cooper-ate with judges by sharing responsibilities, and toparticipate autonomously and meaningfully indeciding trials." After that the government (morespecifically, the Lay Judge System and CriminalProceedings Review Board of the Justice SystemReform Promotion Headquarters) began workingout the details of the JSRC's proposal, the resultsof which were summarized in the bill that wassubmitted to the Diet in March 2004 and signedinto law as the Lay Judge Act (officially, the ActConcerning Participation of Lay Judges in CriminalTrials) on May 21. The act went into effect on May21, 2009 after a five-year preparatory period.

In the series of discussions held between theestablishment of the JSRC and the enactment ofthe Lay Judge Act, a wide array of issues was cov-

ered. Participants asked whether Japan shouldimplement a system of direct citizen participationin criminal trials and, if so, whether an American-style jury system or a continental European-stylecitizen-participation system was more appropri-ate. The lay judge system that eventually resultedfrom these discussions was based on a citizen-participation system in which lay judges work inconcert with professional judges to determineinnocence or guilt as well as to apply laws anddetermine sentencing. However, the systemended up adopting an aspect of a jury systemwith respect to the random selection of lay judgesfrom among the people for each trial.

In the course of discussions, some membersemphasized a ratio of one professional judge (ortwo at most) to nine or eleven lay judges in aneffort to strengthen the jury-like aspect of the sys-tem, while other members argued for panels withthree professional and two lay judges to keep thesystem as close as possible to conventional crimi-nal trials (which are overseen, as a rule, by threejudges). In the end, the current system of threeprofessional and six lay judges was agreed upon.Verdicts issued in trials are conditional majorityverdicts, meaning that a majority of the collegialbody must reach a verdict and at least one profes-sional judge must agree with that verdict. In otherwords, even if all six lay judges agree that adefendant is guilty, or not guilty, a verdict cannotbe reached if all three professional judges reachthe opposite conclusion.

Cases subject to lay judge trials are those involv-ing: (1) crimes warranting the death penalty orlife imprisonment, and (2) cases in which victimswere killed by intentional criminal acts. Layjudges were only given purview over such seri-ous cases because citizens are thought to have agreat deal of interest in such cases and there is alimit to the number of trials that can be handledwith lay judge participation. Defendants do nothave the right to choose whether they will betried in a lay judge trial or in a trial overseen onlyby professional judges, so in effect, lay judge tri-als are held for all eligible cases.

Some felt that the extent of confidentiality obliga-tions borne by lay judges should be limited to theabsolute minimum after the conclusion of trials,


but the "confidentiality of deliberations" clausedeemed that the course of deliberations, opinionsof all judges, and the vote tally all required confi-dentiality indefinitely after the conclusion of tri-als. Initially, prison terms or fines were proposedfor violations of confidentiality obligations, butthis was criticized as excessive for a system of citi-zen participation so punishment was limited tofines.

3. The Purpose of the Lay Judge System: Ensur-ing Democracy or Promoting the People'sUnderstanding of and Confidence in the Jus-tice System?

The lay judge system was enacted after years ofdeliberations, but a crucial difference hasappeared between why this system was imple-mented and past discussions that called for citi-zen participation in the justice system.

In the past, advocates of citizen participation inthe justice system, especially through the adop-tion of a jury system, sought to more fully realizedemocracy or popular sovereignty. In otherwords, their aim was the political and educationaleffects of promoting judicial legitimacy—bolster-ing democratic legitimacy, ensuring fair trials(and preventing mistrials), and deepening thepeople's awareness of their status as sovereignmembers of the nation through their direct partic-ipation in the administration of justice, an impor-tant venue for exercising state power. This ideawas partially incorporated into the JSRC's 2001opinion brief, but it has gradually been left in thebackground in subsequent discussions.

Article 1 of the Lay Judge Act sets forth the pur-pose of the system as follows:

Through the participation in criminal proceed-ings of lay judges--who have been selected fromamong the people--with [professional] judges,this legislation seeks to contribute to the promo-tion of the people's understanding of the judicialsystem and thereby raise their confidence in it.

This rationale shares common ground with tradi-tional argument in that it aims to bolster the legit-imacy of the courts (i.e., establish a popular foun-dation) through the participation of the people in

trials. However, the ideological grounds for thisdo not lie in the people's intrinsic right to partici-pate in trials as sovereign members of the nation.Rather, the unique feature of the lay judge systemis that participation in trials is expected to haveinstrumental value for contributing to "the pro-motion of the people's understanding of the judi-cial system and…their confidence in it."

This difference does not stop at the ideologicallevel; it also has several consequences for thedetails of the system’s design. If a countryadheres to the argument for citizen participationin the justice system based on democracy or pop-ular sovereignty, then a jury is a more appropriatechoice than a citizen-judge system. If a countrychooses to use a citizen-participation system, thenthe number of citizens participating in trialsshould be as high as possible in order to reflectthe diverse composition of the people in themakeup of the collegial body (For example, nineor eleven lay judges for one or two professionaljudges). However, during the discussion on thedetails of Japan’s system, it was assumed that thesystem to be adopted would not directly correlatewith the basic principle of popular sovereignty,hence its grounding in a citizen-participation sys-tem instead of a jury system. Likewise, the choicewas made to include three professional and sixlay judges (for a judge-lay judge ratio of 1:2) inthe collegial body.

The public discussion on the lay judge system inJapan differed drastically from the conventionalargument for citizen participation in the justicesystem in one more aspect: the recognition of thecurrent state of criminal trials. In the conventionalargument for citizen participation in the justicesystem, myriad problems exist with criminal tri-als in Japan, and particularly with upholding thedefendant's right to an adequate defense (and theprevention of mistrials thereby). Proponentsstressed the need for a system of citizen participa-tion in criminal trial to remedy this situation.Meanwhile, the leading proponents of introduc-ing lay judges took the position that there wereno major problems with the current criminal jus-tice system and that it was sufficiently supportedby the people, but that the adoption of a citizenparticipation system would further increase thepeople's confidence in criminal proceedings (as


per the statement by Minister of Justice Nozawain the March 16, 2004 plenary session of theLower House). This difference in perceptionabout the present state of affairs resulted in thedesign of a lay judge system that was fundamen-tally more accommodating to existing criminalproceedings and led to a judge-lay judge ratiothat was comparatively similar to that of currenttrials.

In fact, some of the criminal law experts andcriminal defense lawyers who actively cam-paigned for citizen participation in the justice sys-tem in the past expressed deep reservations aboutthe lay judge system which was enacted in theDiet. That these proponents of citizen participa-tion in the justice system expressed distrust in thelay judge system may seem strange at first, butfrom their point of view, the rationale for the sys-tem and its design had drifted too far fromreforming criminal justice in Japan to increasingpeople’s acceptance of the actions of prosecutorsand courts.

4. Conclusion: Regime Change as a Process

As I have outlined above, the lay judge systemhas not been solely designed as a system of popu-lar participation or popular sovereignty. Nonethe-less, the lay judge system is significant as the firstforay into citizen participation since the formerjury system was discontinued in 1943. Going for-ward it will be important to firmly establish thesystem as part of Japanese society through itscontinued implementation and to develop it as asystem in which citizens proactively participateas sovereign members of the nation. While it goeswithout saying, the key to achieving this will bethe way in which participating citizens come tounderstand the meaning of the system. In the var-ious polls conducted before the lay judge systemwas adopted, people were not entirely positiveabout serving as lay judges (for example, in a pollconducted by the Asahi Shimbun on January 9,2009, 76% of respondents said they did not wantto participate "at all" or "if they could help it"). Asthis shows, there have been doubts about whetheror not this system can succeed as a way to expandpopular participation. However, in the year sincethe lay judge system went into effect, it appearsthat most of the lay judges have taken their role

seriously and feel positively about their experi-ence (for more on this, see the article by Shi-nomiya in this issue). Given this, the prospectsthat the lay judge system will evolve into a sys-tem of self-motivated citizen participation aregood.

In light of this, I would like to conclude this essayby mentioning two points that I think are essen-tial for the future development of the lay judgesystem. The first point is the need for improve-ments in the criminal justice system on which thelay judge system is based. As many proponentshave noted, systems for citizen participation inthe justice system are political institutions, andpopular participation in trials is an opportunity todeepen the people's understanding of democracy.However, at the same time, it must be confirmedagain that the essential purpose of lay judges is,above all else, the actualization of fair criminalproceedings. The current Japanese criminal justicesystem has many shortcomings, and improvingon these is an absolute prerequisite for the con-duct of fair trials with lay judges.

The biggest issue is that nothing has been done toaddress the long interrogations of suspectsbehind closed doors, without legal representation.The fact is that the confessions obtained fromthese interrogations are definitively crucial in thecourts. There have been some recent newspaperreports of suspects being forced to issue false con-fessions after undergoing illegal interrogations, soit is important to take measures to ensure the fulltransparency of the interrogation process, such asmaking audio and video recordings, so that layjudges can assess the authenticity of confessions.Another major issue is the discovery of evidenceheld by the prosecutors. The scope of evidencesubject to discovery was expanded in line withthe adoption of the lay judge system, but it stillcannot be considered sufficient. In order to effec-tively protect the defendant's rights in lay judgetrials in which intensive deliberations are con-ducted in a short period of time, it is absolutelynecessary for prosecutors to disclose all evidencein their possession in advance (at the very least, alist of all evidence in the prosecutor's possessionneeds to be released). It is thought that the meritof the lay judge system—that is, people partici-pating in trials, scrutinizing evidence with their


own eyes and issuing a verdict of guilty or inno-cent based on common sense—will only be fullyrealized once these overarching problems in thecriminal justice system are remedied.

Secondly, it is important to promote the continu-ous improvement of the lay judge system andhow it operates rather than treat its current rulesas final and conclusive. For instance, the confi-dentiality obligations borne by lay judges underthe current system are too stringent. Lay judgesmust not breach the privacy of the plaintiffs anddefendants they encounter in trials, and it is nat-ural to place some restrictions on divulging courtproceedings. However, for regular citizens to beselected as lay judges and exercise adjudicativepower is a significant and serious experience. Ithink the system could be a little more open toallowing lay judges, once a certain amount oftime has passed after a trial concludes, to engagein serious public discussions about their experi-ences, sharing with the rest of society their deepinsights into a system in which people pass judg-ment on other people . There are also severalquestions concerning the nature of the lay judgesystem that society must discuss and answer, forexample, should defendants be given the right—which they currently do not possess—to choosewhether or not lay judges will participate in theirtrials? Should the requirements for issuing ver-dicts be weighted to favor the presumption ofinnocence? What kinds of cases should be eligiblefor lay judge trials--should they be limited todenial defense cases? Should sex crimes beexcluded?

Under the Lay Judge Act, a review of the lay judgesystem was slated for 2012, three years after theact’s implementation, and the system may beamended as needed. Going forward it will be nec-essary to ascertain how well the lay judge systemis operating and to engage in a continuing debateon improving the system. More discussion willalso be needed on the meaning of the citizen par-ticipation in the justice system. The significance ofthis so-called regime change of realizing popularparticipation in the justice system does not liewith the one-off occurrence that was the system'sadoption, but in the continuous process of peopleparticipating in trials as sovereign members of thenation and striving to ensure trials’ fairness,reviewing the system and its operation, and reex-amining the meanings thereof.

Further Reading

Justice System Reform Council. 2001. Shiho seidokaikaku shingikai iken-sho: 21-seiki no Nihon o sasaeru shiho seido (Recommendations of the Jus-tice System Reform Council: For a Justice Systemto Support Japan in the 21st Century). RetrievedJune 23, 2010 (English version: http://www.kantei.go.jp/foreign/policy/sihou/singikai/990612_e.html).

Sato, Iwao. 2002. “Judicial Reform in Japan in the1990s: Increase of the Legal Profession, Reinforce-ment of Judicial Functions, and Expansion of theRule of Law.” Social Science Japan Journal 5(1): 71-83.


Shinomiya Satoru is a Professor of Law at Kokugakuin

University School of Law. He is also a Lawyer, and a

former Director of the Research Office for Judicial

Reform, Japan Federation of Bar Associations / a

former member of the Lay Judge System and Criminal

Justice Task Force, Governmental Head Office on

Justice System Reform*.

Kokugakuin University School of Law4-10-28 Higashi, Shibuya-ku, Tokyo 150-8440 [email protected]

Introduction

A new trial system known as saiban-in seido—amixed tribunal consisting of three professionaljudges and six lay people—started in Japan inMay 2009. Saiban-in [lay judges] are picked ran-domly from voter rolls and have the power tofind facts and decide sentences along with pro-fessional judges. As of the end of May 2010,1898 individuals had been indicted for lay judgetrials (Supreme Court in Japan [SCJ] 2010a: table1-1); 601 defendants had been tried before layjudges and sentenced by them (ibid.: table 2-1).In all, 3369 citizens had served as lay judges,and 1298 had served as alternates in 554 cases(ibid.: table 7).

It is too early to analyze the general public's atti-tudes toward lay judge trials because the num-bers are still small. However, surveys of layjudges do suggest some things about the future ofthis new system of citizen participation in Japan-ese criminal justice.

The Legal Professions’ Predictions

Before implementation of the new system, somelegal professionals who opposed it made dire pre-dictions regarding lay judges’ competence. A for-mer high court judge, Okubo Taro, prognosticatedthat: (1) lay judges would be so nervous and trialprocedures would be so hard to understand andboring that the citizens would regret having cometo the court; and (2) people willing to servedespite this complexity and tedium are likely tobe an odd lot comprised of individuals seekingnovelty or financial gain, government employeeswho are dependent on government, and rigid ide-ologues, to wit, hardly the type of people youwould turn to for a well-considered and objectiveinquiry (Okubo 2005: 5-6).

Law professor Nishino Kiichi, also a formerjudge, argued that the lay judge system is unrea-sonable because we cannot expect people to readdocuments and find facts (Nishino 2007: 160), it isnot their wish to be forced into a strange world(161), since they are lay people, as well as jurorsin courtrooms abroad, they would fall asleep dur-ing proceedings (162), and there may be layjudges who, despite having slept during a trial,would deny having done so and insist they fullygrasped the issues at hand, exasperating the pro-fessional judges and the other lay judges (175). Inthese ways (and more), some legal professionalsexpressed great skepticism about the average per-son’s capacity to serve as a lay judge.


Defying Experts’ Predictions, Identifying Themselves as Sovereign:Citizens’ Responses to Their Service as Lay Judges in Japan

Shinomiya Satoru

* The author would like to thank Professor David T. Johnson at University of Hawaii for much useful advice on the subject of this paper. Theauthor’s warm thanks also go to Dr. Margaret Gibbons and Dr. Kuniko Ishiguro for their editing and correction of English.

People’s Responses Before Implementation

So what has been the public's reactions to the layjudge system? According to a May 2008 surveyconducted by the Supreme Court (multiple choic-es), less than 20 percent of citizens said they werewilling to serve as a lay judge (“want to serve,” 4.4percent, “willing to serve,” 11.1 percent). On theother hand, more than 80 percent said they werereluctant or opposed to participating. 44.8 percentsaid they “would serve only if obligated to do so,”and 37.6 percent were “unwilling to participateregardless of any obligation.” The reasons for peo-ple’s reluctance were: “the responsibility to decideanother’s fate is too great” (75 percent); “lay peo-ple cannot try a case without legal knowledge” (64percent); and “lay people cannot deliberate asequals with experienced and professional judges”(55 percent) (SCJ 2010c: 16; 22).

People’s Responses After Implementation

1. Attendance RateBy the end of May 2010, 601 defendants had beentried before lay judges. The total number ofprospective lay judges for those cases was 52,206.Of those, 27,141 (51.9 percent) were excused fromservice for cause by the courts. This high rate ofexcusals suggests that courts were indulgent intheir acceptance of excuses during the first stageof the new system. The attendance rate ofprospective lay judges who were not excused was82.6 percent (SCJ 2010a: table 4, 5).

Under the old jury system that Japan hadbetween 1928 and 1943, 36 prospective jurorswere to be summoned to select 12 jurors in eachcase.1 Of the first 114 cases, the average atten-dance rate was 91 percent (Saiko Saibansho JimuSokyoku Keiji Kyoku 1995: 274). It appears thatpeople were and are taking their duties seriously.

By the end of May 2010, 3369 people had servedas lay judges and 1298 as alternates in 554 layjudge trials. Japan conducted 484 jury trials underthe old jury system in its fifteen years of opera-

tion, a number exceeded in the first ten months ofthe new system.

2. Change of Attitude Toward ServiceAccording to the questionnaire surveys conduct-ed by each district court from January 2010through May 2010 (hereinafter, the “court sur-veys”), 1889 citizens who served as lay judges in342 cases answered as follows. Before being sum-moned, 52.9 percent were reluctant to serve (19.5percent did not want to serve, and 33.4 percentwould rather not). But after serving, 96.1 percentwere happy with their experience (55.9 percenthad a very good experience, 40.2 percent had agood experience) (SCJ 2010b: Chosa Kekka Daije-suto (2), p.7).

This reminds us of similar responses by peopleinvolved with another aspect of the justice sys-tem. A 2005-2007 survey of 290 people who hadserved as a member of Kensatsu Shinsa-kai (Com-mittees for the Inquest of Prosecutions)—a systemin which eleven lay people are picked randomlyfrom voter rolls (serving a term of six months) tomake inquiries as to whether prosecutors haddropped a case appropriately—had the followingresults. Before being summoned, 66.9 percent saidthey were reluctant to serve (51.7 percent “reluc-tant,” 15.2 percent “annoyed”), while after service95.9 percent were happy with their experience (50percent “very good,” 45.9 percent “good”).2

Thus, the two surveys show a remarkable changeof citizens’ attitude “before and after.” One key tounderstanding their attitude changes can be foundin the voices of lay judges after their service.

Real Voices of Lay Judges

1. The Trial ExperienceAt the end of May of 2010, the average number ofcourt sessions held per trial was 3.5 (SCJ, 2010a:table 10). According to the court surveys, 68.6percent of lay judges said the trial was under-standable, 25.3 percent normal and 5.2 percentfound it hard to understand (SCJ 2010b: Chosa


1 Baishin Ho [Jury Act 1923], Art. 27.1.2 Kensatsu Shinsain, Hojuin Keikensha no Anketo Kekka [Questionnaire Survey to CIP Members and Alternates], Tokyo Daiichi-Dairoku

Kensatsu Shinsakai Jimukyoku and Tachikawa Kensatsu Shinsakai Jimukyoku, Kensatsu Shinsakai? Nandaro : 10. The survey had beenconducted by Tokyo No.1CIP, Tokyo No.2 CIP, and Hachioji CIP.

Kekka Daijesuto (1), p.6). At post-trial press con-ferences, most lay judges said that legal profes-sionals were trying to make trial proceduresunderstandable, though some said that it took toomuch effort to make the proceedings comprehen-sible.3 Lay judges also reported that the legal pro-fessionals did not use legal technical terms,4 andrespected the lay judges.5

It seems the legal professions’ efforts to maketheir courtroom performance more comprehensi-ble have been working. But lay judges’ assess-ments of the understandability of each profes-sions’ performance differ across professions withjudges receiving the highest marks at 89.5 per-cent, prosecutors following at 77.2 percent, anddefense attorneys a distant third at 47.0 percent(SCJ 2010b: Chosa Kekka Daijesuto (1), p.6). I willdiscuss this in more detail below.

2. DeliberationsFor the cases concluded by the end of May 2010,the average length of deliberations is just overseven hours (439.3 minutes) (SCJ 2010a: table 12).In regards to the atmosphere of the joint delibera-tions of lay and professional judges, according tothe court surveys, 77.6 percent said they felt itwas easy to speak, 1.3 percent found it hard tospeak and 20.8 percent fell between the two (SCJ2010b: Chosa Kekka Daijesuto (2), p.7). 70.9 per-cent of respondents said they could discuss theissues thoroughly, 7.7 percent could not fully dis-cuss matters, and 20.5 percent could not say(ibid.). Also at the media conference, most layjudges said that teamwork was good and deliber-ations went smoothly,6 that members of the mixedpanels were able to express their own opinionsfreely,7 and that they expected only a few opin-ions to be expressed, but in fact, the atmospherewas open and harmonious enough to enable theexchange of opinions.8 But some lay judges said it

seemed like the trial and deliberation schedulewas predetermined and too tight,9 and one layjudge said he felt as if there were a pre-decided“rail” that could not be deviated from.10

How is the System Working?

It is probably too early to analyze the new layjudge system. But the record of the first eightmonths does show changes in two spheres—thetrial system and the political system.

1. As a Trial SystemThe lay judge system has been changing criminaltrials dramatically. Before the invitation of laypeople into courtroom, criminal trials were:- hard to understand because prosecutor andjudges used many dossiers, and prosecutors didnot read them aloud in the courtroom but judgesread to themselves in their chambers.- lacked transparency because prosecutors had noobligation to disclose evidence in their handsother than they wanted to submit to the court.- time consuming because trial sessions for agiven case were held only once a month or everyother month.Inviting lay people to act as judges is changingtrial procedures materially so that they can dis-charge their duties meaningfully and thoroughly.

(a) Pre-trial proceduresLay judge cases should go through a pre-trial pro-cedure which was created especially for lay judgetrials.11 In the new pre-trial procedure, prosecutorsare obliged to disclose evidence that falls withincertain criteria, adding to the evidence they wantto submit to the court.12 Also, the court and par-ties agree to a trial schedule before the start ofcourt sessions.13

(b) Oral presentations and examinationsAlthough no article of the Code of Criminal Pro-cedure on evidence was changed by implementa-


3 Sankei Shimbun, 2009.8.12 (Saitama Case).4 Yomiuri Shimbun, 2009.10.3 (Koriyama Case).5 Ise Shimbun, 2009.9.17 (Tsu Case).6 Yomiuri Shimbun, 2009.12.21 (Osaka Case).7 Yomiuri Shimbun, 2009.10.2 (Yokohama Case).8 Yomiuri Shimbun, 2009.9.17 (Wakayama Case).9 Sankei Shimbun, 2009.9.9 (Kobe Case).10 Asahi Shimbun, 2009.10.30 (Hamamatsu Case).11 Saiban-in no Sanka Suru Keiji Saiban ni Kansuru Horitsu [Lay Judge Act, LJA], Art. 49.12 Keiji Sosho Ho[Code of Criminal Procedure, CCP], Art. 316-2 through 316-32.13 CCP, Art. 316-24.

tion of the lay judge system, courts and partieshave made a big shift in courtroom evidence fromdossiers to witnesses.14

(c) Continuous sessionsIf a trial session could not finish in a day, the fol-lowing sessions are to be conducted on successivedays.15

As these examples indicate, criminal trials havebeen changed as a result of the participation oflay judges, becoming more transparent, fair, andswift.

2. As a Political SystemNo one doubts that Japan is a democratic country.But since Japanese politics has few systems inwhich the electorate can exercise its sovereignty,most Japanese think that democracy is just votingin elections. However, the critical stage of democ-racy is not only to reach a conclusion by votingbut to have deliberations by the people beforevotes are cast.

Many lay judges describe their experience as agood chance to think about their society. One layjudge said that “Since our mission is heavy, weshould discharge it seriously. It is a good chanceto think about our society as a whole” (SCJ 2010b:140). Another lay judge said, “I was reluctant butchanged my mind. Since our society is made ofindividuals, each of us should speak up to changeour society. If each of us thinks of what we can dofor our society, it will develop.”16

What are the Challenges?

1. Imbalance of Power between PartiesAs I showed above, the understandability of thelegal professions’ performances in the courtroomdiffers across professions with 77.2 percent find-

ing prosecutors understandable but only 47.0 per-cent feeling that way about defense attorneys.The gap between these parties’ ratings mightdepend, in general, on whether they have anorganization which can easily and effectively runtraining programs. Also, in particular, the funda-mental power gap between prosecutor anddefense is a product of the uneven distribution ofhuman resources, financial resources, and abilityto access forensic science.17

2. Privacy of VictimsSome sex crimes are eligible for lay judge trial.18

Victims and their supporters argue that it is anextra burden for sex crime victims to be known toprospective lay judges. However, as of this writ-ing, courts have yet to reject trial by lay judge forthese crimes and they have been trying to avoidrevealing names and addresses of victims toprospective lay judges. Prosecutors, after disclo-sure of prospective lay judges’ names list,19 ask thevictim to see if there are any familiar names on thelist. If so, the prosecutor will remove thoseprospective lay judges by peremptory challenges.20

In addition, in the courtroom, the court keeps thevictim’s name and address from being readingaloud and permits victims to testify from a roomoutside of the courtroom using a video link.21

Despite these efforts by the court, some criticsmaintain that sexual assault cases should not beeligible for lay judge trials. Do the lay judges whoparticipated in such cases agree? While one layjudge said, “If a victim doesn’t want to be triedbefore lay judges, we would be better off respect-ing her request,”22 another lay judge said, “Aspeople who hear victims’ stories, we have a dutyto ask the government to establish some kind ofinstitute to support them.”23 Trying sexual assaultcases before lay judges seems to have begun a


14 The reason why the shift did not need to change CCP on evidence is CCP originally expected trial session should be conducted orally, i.e.introduction of hearsay rules, but legal professions preferred dossiers to witnesses, using hearsay exemptions .

15 CCP, Art. 281-6.16 Sankei Shimbun, 2009.8.617 Police has its own institutions, i.e. Kagaku Keisatsu Kenkyujo[National Research Institute of Police Science] for National Police Agency, and

Kagaku Sosa Kenkyujo[Prefectural Institute for Forensic Science] for each prefectural police. And prosecutor’s office easily be able to accessthese institute, but defense are not.

18 Rape/sexual assault resulted in injury (Penal Code (PC) Art.181, 176, 177) and rape by robber (PC. Art. 241).19 Court give both party a list of names of prospective lay judges two days advance to the first court session (LJA. Art.31.1).20 Each party has right to peremptory challenge up to four (LJA. Art. 36.1).21 CCP. Art. 157-4, 290-2.22 Jiji Press 2009.12.18 (Kobe case).

greater sharing of the problems of these crimeswith society.

3. Capital CaseJapan is retaining capital punishment,24 and capi-tal cases are eligible for lay judge trial.25 By theend of July 2010, prosecutors had not recom-mended the death penalty in any lay judge trialcase, and so lay judges were never faced withmaking a life or death decision. After the start ofthe lay judge system in 2009, some critics saidthat capital cases should be taken off the list ofcrimes eligible to be tried by lay judges. Theyargue that it is too stressful to require lay peopleto decide death penalty cases.26

But we should think about this very carefully. Thepurpose of the new system is not only to imbuecriminal trials with the common sense of society,but to check the exercise of governmental powerin serious cases, especially in potential capitalcases, in which the government may try todeprive a member of our community of his or herlife. People bear a heavy responsibility to checkthe exercise of that power, to make sure it is fair,just, and accurate. What we should do is, I think,not to put blinders on people again but to urgegovernment to disclose information on the deathpenalty so that lay judges, when they must con-sider capital punishment, in reality for the firsttime, can discuss it meaningfully. I also expectthat greater disclosure of death penalty will spurmore debate on capital punishment as people rec-ognize that the system is theirs to reshape.

4. Obligation of SecrecyLay judges bear a duty of secrecy, especially con-cerning their deliberations. Lay Judge Act (LJA)Art. 70 stipulates the obligation not to violate the

“secrecy of deliberations.” It defines “secrecy ofdeliberations” as the “process of deliberations,individual opinions, and distribution of thevote.”27 Most lay judges show they understandthis obligation after their service. On the otherhand, they want to share their experience withtheir community. At least three lay judges attend-ed a press conference in 105 of the first 116 trials(91 percent). Excluding alternates, 77 percent ofthe citizens who participated as regular layjudges in 2009 also participated in press confer-ences.28 From January through March 2010, layjudges and alternates participated in post-trialmedia conferences in 217 cases out of 228 (95 per-cent) (Nihon Shinbun Kyokai 2010). And theyspoke out frankly and freely about their experi-ences.

Lay judges feel frustrated by the vagueness of thedefinitions of “secrecy of deliberations” and“process of deliberations” which are so hazy thatthey cannot determine what the boundaries are.Another source of dissatisfaction is that court offi-cials who participate in courthouse media confer-ences sometimes act to keep lay judges from mak-ing comments to the press without providing aclear justification for their interference.29 Sharingthe experiences of lay judges with society is thebest course to embed the lay judge system intoour society. We should observe the duty of confi-dentiality as it was originally intended: to protectthe privacy of people involved, not reveal indi-vidual opinions of lay and professional judges,nor reveal the impeachments of verdicts or sen-tences.

Conclusion

As mentioned above, it is probably too early to


23 Sankei Shimbun, 2009.9.4 (Aomori case).24 18 crimes are eligible for death, e.g. rebellion (PC Art. 77.1), inducement of foreign aggression (PC Art. 81), arson of an occupied dwelling

(PC Art. 108), murder (PC Art. 199), robbery resulting in death (PC Art.240), robbery and rape resulting in death (PC Art. 241), etc.25 LJA Art. 2.1.26 For example, Shoko Egawa, a well-known journalist, said on “Nichiyo Toron” (Sunday Debate), an NHK TV program broadcasted on May

2, 2010, that “Lay people will be stressful if they sentence the defendant to death. Professional judges take their job voluntarily as it is. Weshould take capital cases away from the lay judge system.”

27 And LJA. Art. 108 stipulate punishment when lay judge breach the obligation.28 Daily Yomiuri, 25 December 2009. David Johnson and Satoru Shinomiya, Judging Japan’s New Criminal Trials: Early Returns from 2009,

forthcoming.29 By the end of February 21, 2010, court officials stopped lay judge remarks in the media conference in 29 cases (Kyodo Tsushinsha Saiban-in

Kentokai, “Saiban-in Saiban to Jiken Hodo” [Kyodo News, Committee on Lay Judge Trial, Lay Judge Trial and Crime News Report by the

Media]). The interference might raise a constitutional argument.

analyze the attitudes of people in the new layjudge system. But with the information and helpprovided by the legal professionals, citizens doseem to understand what a lay judge is, what thejustice system is, and what democracy is. Theseare not small achievements. And despite the legalrestrictions on reporting about one’s own experi-ences as a lay judge, personal accounts have beenshared not only with those who served, but alsowith people in the community. One woman wrotea letter to a newspaper editor saying, “The pressconferences of the lay judges conveyed a strongsense of responsibility to me. I was struck by theirwords that ‘Our lives should be made by our-selves.’ Whether we can make better politics andsociety depends on our attitudes, too.”30

As Alexis de Tocqueville wrote in his Democracyin America, the jury system and universal suf-frage are two wheels of democracy (Tocqueville1990: 283). Mitani Taichiro, a prominent politicalscientist, describes the introduction of the layjudge system as not only judicial reform but polit-ical reform (Mitani 2001: 25). Ohsawa Masachi, asociologist, described the lay judge system as the“quiet revolution of 2009” compared to the“front-page revolution” of the change of govern-ment that same year (Shinomiya and Ohsawa2010: 40). Indeed, the lay judge system has startedto work not only as a judicial system but as apolitical one.

After a 60-year moratorium on lay participationin Japanese criminal justice, the lay judge systemhas thrown a stone into the pond of Japanese soci-ety, and the ripples are gradually, and deeply,spreading.

References

Mitani, Taichiro. 2001. Seiji Seido to shite no baishin-sei--Kindai Nihon no shihoken to seiji (JurySystem as a Political System: Judicial Powerand Politics in Modern Japan). Tokyo: Uni-versity of Tokyo Press.

Nihon Shinbun Kyokai (The Japan NewspaperPublishers & Editors Association). 2010.Saiban-in keikensha no kishakaiken ni tsuite

(Report on Lay Judges’ News Conferences).Retrieved May 25, 2010 (http://www.press-net.or.jp/statement/100521_520.html).

Nishino, Kiichi. 2007. Saiban-in seido no shotai (TheTruth about the Lay Judge System). Tokyo:Kodansha.

Okubo, Taro. 2005. “Iken no depato”: Saiban-in seidojissi no fukanousei (jou) (A Department Storeof Unconstitutionalities: Impossibility of theEnactment of Lay Judge System (part 1) ).Hanrei Jiho 1883: 5-6.

Saiko Saibansho Jimu Sokyoku Keiji Kyoku(Criminal Division of the Supreme Court).1995. Wagakuni de okonawareta baishin saiban:Showa shoki ni okeru Baishin Hono unyo nitsuite (Japan’s Jury Trials: Its Implementa-tion of the Jury Law in the Early ShowaEra). Tokyo: Shiho Kyokai.

Shinomiya, Satoru and Ohsawa, Masachi. 2010.“Kore wa minshuka nanda” (This is Democ-ratization). Ohsawa, Masachi THINKING‘O’ 3: 4-51.

Supreme Court in Japan. 2010a. Saiban-in seido nojisshi jokyo ni tsuite: Seido shiko～Heisei 22 nen5 Gatsu-matsu・Sokuho (A Collection of Doc-uments relating to the Implementation ofthe Lay Judge System: From Enforcement toMay 2010). Retrieved August 06, 2010(http://www.courts.go.jp/saikosai/about/iinkai/saibanin_kondan/siryo_09/pdf/siryo_2.pdf).

------2010b. Saiban-in to keikensha ni taisuru anketo:Chosa kekka hokokusho, Heisei 22 nen 1gatsu～4gatsu Bun (Results of Questionnaire Sur-veys of Lay Judges, January-April 2010).Retrieved August 06, 2010(http://www.courts.go.jp/saikosai/about/iinkai/saibanin_kondan/siryo_09/pdf/siryo_3.pdf)

------. 2010c. Saibanin seido ni kansuru ishiki chosa:Chosa kekka hokokusho (Research Report: ASurvey of Attitudes toward the Lay JudgeSystem). Retrieved June 06, 2010(http://www.saibanin.courts.go.jp/top-ics/pdf/08_04_01_isiki_tyousa/siryo1.pdf).

Tocqueville, Alexis de. 1990. Democracy in Amer-ica: Volume 1. New York: Vintage Books.


30 Yomiuri Shimbun, 2009. August 18.

Uno Shigeki is an Associate Professor of the History

of Political Theory and Political Philosophy at the

Institute of Social Science, the University of Tokyo.


Assessing the Lay Judge System

Over a year has passed since the lay judge systemwas launched on May 21, 2009. The most preva-lent assessment in the media is that the system, forthe most part, started on the right note. Accordingto a survey by the Asahi Shimbun (May 17, 2010),over 90 percent of citizens who have served as layjudges responded that they were glad to have hadthe experience of serving. That being said, as aTocquevilleist, I cannot deny that I feel ambivalentabout Japan adopting a lay judge system.

Having studied Alexis de Tocqueville as aresearcher of the history of political thought, Iknow that he considered juries an essential part ofdemocratic systems of government, and the factthat Japan has finally introduced a jury system—although in the form of the lay judge system—canbe regarded as a major step forward. In his mostimportant book, Democracy in America, Toc-queville (2004) stated:

To regard the jury simply as a judicial institu-tion would be to take a notably narrow view, forif the jury has a great influence on the outcomeof a trial, it has an even greater influence on thefate of society itself. Hence the jury is first andforemost a political institution and must alwaysbe judged as such (p. 313).

Here, one should focus on the fact that Toc-queville defines the jury as a “political institu-tion.” Above all else, Tocqueville highly regardedthe jury system within a political context.

Nevertheless, I am hesitant to fully support theadoption of the lay judge system because I am aTocquevilleist. Tocqueville viewed the jury as apolitical institution that comprised one aspect ofpopular sovereignty. He posited that as thedemocratization of political systems progressed,regular citizens would be able to participate in thecourts that were once monopolized by the politicalelite. In other words, citizens would win back par-tial sovereignty from elites. If so, then Japan’s layjudge system can hardly be considered as some-thing won back by the citizens because, aside froma handful of legal professionals, no one stronglyadvocated for a jury system as the lay judge sys-tem was being put in place. After its inception, anoticeable number of people dismissed the systemas a burden both financially and in terms of time.Typically, a jury system should be a right of thepeople. However, after the introduction of the layjudge system most Japanese citizens considered ita burden as evidenced by the volume of com-ments such as “I don’t know what I’ll do if I getchosen as lay judge,” and “I wonder what kind ofreason I will need to get out of lay judge duty.”After one year I am still skeptical as to whether ornot the number of people who think lay judge ser-vice is a right and not a duty has grown. KoyaMatsuo, University of Tokyo emeritus professorand godfather of the lay judge system, said that“the participation of the people in the justice sys-tem is becoming part of the Japanese culture,” butit is still not certain whether or not one can go so


The Lay Judge System as Viewed from a Political Context

Uno Shigeki

far as to say this.

Juries as Political Institutions—Tocqueville’s Insight

Let us now take a closer look at Tocqueville’s theo-ry on juries. When thinking about Tocqueville’sarguments, one must focus on that fact that hemade a distinction between juries for criminal andcivil trials. Tocqueville considered the jury systeman important step in realizing the sovereignty ofthe people mainly with regard to criminal trials.As a matter of fact, Tocqueville did not rule outthe possibility of misjudgment by juries. This isbecause while juries in underdeveloped societiesthat are only charged with handling simple prob-lems may judge them correctly, the juries in soci-eties with highly complex interpersonal relation-ships do not always make the correct decision.

That being said, Tocqueville championed juries aspolitical institutions:

The jury is above all a political institution. Itshould be regarded as a form of popular sover-eignty. If popular sovereignty is repudiated, thejury should be discarded entirely; otherwise itshould be seen in relation to other laws estab-lishing popular sovereignty (p. 315).

Punishing criminals in criminal trials is an essen-tial function of society which intertwines issues ofpower and legitimacy. Given this, for the peopleto partially regain this function they must wrestfrom the political elite the right to lead society.Tocqueville considered that the sovereignty of thepeople in the administration of justice was fullyachieved when regular citizens in the UnitedStates were added to juries which had been firstestablished as aristocratic institutions in GreatBritain. Granted, his main focus was on juries incivil trials. According to Tocqueville, where thejury system could truly take root and transformthe political culture of society was in civil trials.This is because civil trials are more immediatelyconcerned with everyday life and when peopleare tried by their neighbors, one comes to realizethat one day you, too, could become involved.

Approximately 4.5 million cases go to trial inJapan every year, of which 1 million are criminaltrials. Looking at these numbers, civil trials com-

prise a vast majority of cases. The chances that aperson may find himself involved in trial as adefendant, plaintiff, witness or other concernedparty are much higher for civil trials than forcriminal trials. In this sense, it is safe to say thatcivil trials are indeed more immediately con-cerned with our everyday lives. Tocqueville saidthat participation in civil trials made peoplerethink what people’s rights are, what the lawmeans and what constitutes a responsible judg-ment. In that context, the biggest reason why Toc-queville held juries in high regard was the effectthey had on “the practical intelligence and politi-cal good sense” of the people. If that is the case,then doubts still remain about the lay judge sys-tem given that its use is limited to serious casessuch as murder and arson, while civil trials aswell as many criminal trials—larceny cases, forexample—are outside of its purview.

The Lay Judge System in Comparison to Other Systems

Interestingly, Japan’s newly adopted lay judgesystem differs from not only from the juries ofEngland and the United States, but also from thecitizen-participation systems in France, Germany,and Italy. Juries in England and the United Statesare systems in which regular citizens are selectedat random for each case with the duty of deter-mining whether the facts of the case, as presentedto them by opposing counsel, are sufficient toprove that a crime has been committed by thedefendant. It is the duty of the jurors alone todecide if a defendant is guilty or not guilty, and ifa guilty verdict is levied, it is the duty of a profes-sional judge to decide the sentence. Comparedwith this, the citizen-participation systems in con-tinental Europe are comprised of representativesnominated in each region who serve as citizenjudges for a certain period of time. Citizen judgesengage in deliberations with professional judgesto determine the facts of a case and issue sen-tences. Given this, Japan’s lay judge system isakin to taking the sum of these two types of sys-tems and dividing by two. Japan’s system is simi-lar to a jury system in that citizen participants areselected at random for each case, but the practiceof lay judges conferring with professional judgesto determine facts and levy sentences is identicalto the citizen-participation system. This system inwhich randomly selected citizens are tasked with


both fact-finding and sentencing, in essence bear-ing the same responsibilities as professionaljudges, is unique to Japan, and there is no doubtthat it imposes a very heavy burden.

However, the problem here lies within the contextof how the system was conceived. Underlying thedevelopment of these systems are the fundamen-tal ideas that each country possesses to justifytheir existence. One could say there is a seriousproblem with discussing these systems superfi-cially without pondering the underlying ideas.

A common thread between the jury systems ofEngland and the United States is a decentralisttradition. In countries with a strong tradition ofregional self-government, there is resistance tohaving an outsider, i.e., the central government,resolve disputes in one’s own community. There-fore, juries should consist of an unbiased sample,a microcosm of society.

Comparing this to continental Europe using theexample of France, citizen judges do not partici-pate in trials as epitomes of the populace. InFrance, with its long tradition of central authority,the national ideal is universalism, the principlethat no one citizen in his core essence is differentfrom the next. As such, citizen judges in Francecan be understood as embodiments of abstractpopular sovereignty. The fact is that Jean-JacquesRousseau’s concept of “the general will” (volontégénérale ) has had a direct impact on citizen partic-ipation in French courtrooms.

One can also see differences in the concept of thecourtroom trial. In brief, prosecutors and defenselawyers in England and the United States haveessentially equal opportunities to present theircases, and the juries, as representatives of the peo-ple, decide which party has a more convincingargument. The potential problems of the Anglo-American systems result not from jurors estab-lishing the truth in a trial, but with the fairness ofthe court proceedings and the reasonableness ofthe jury’s decisions. In comparison, French citi-zen-judges are directly involved in discoveringwhat are the facts of a case as they may questionwitnesses and request that additional evidence bepresented. In France, where national sovereigntyhas traditionally been strong, the tradition of an

officially-controlled inquisitorial system in whichthe courts act to determine the facts is also robust.Therefore, after the French Revolution when thepeople took back power from the king, it wasthought that they, as sovereign citizens, shouldnaturally determine facts in trials.

Whether Japan's lay judge system will "becomepart of Japanese culture” depends on the extent towhich a consensus can be reached given the peo-ple’s understanding of the relationship betweencentral and local governments and of the systemitself, including the practicality of the system’sdesign. In that sense, there are still many issuesthat need to be examined.

A History of Jury Systems in Japan

When thinking about systems, one must comparethem to other systems in the world as well as toother systems within the historical context of one’sown country. It is next to impossible to predictwhether or not a given system will function wellwithout careful consideration of the historicalexperience of the country in question. In regards tojuries, Japan promulgated the first Jury Act in 1923and inaugurated a jury system in 1928. The use ofthis jury system was suspended during the war in1943 and to this day has never been reinstated(although the actual law is still on the books).

Incidentally, the history of the jury concept inJapan predates the Jury Act by several decades.From 1877–78, the Ministry of Justice wasengaged in discussions with the legal advisor tothe Japanese government, a Frenchman namedGustave Emile Boissonade de Fontarabie, whoincluded provisions for a jury in his proposedreforms to Japan's penal code. In the end, thisproposal was rejected by the Meiji government,but it is often said that Ito Hirobumi gave seriousthought to adopting the jury system before draft-ing the Meiji constitution. At the same time, theFreedom and People’s Rights social movementemphasized the establishment of a jury system asone of its goals. Underlying this, of course, wasthe fact that jury systems were well established inWestern nations which Japan was trying to emu-late. However, another crucial factor was thebacklash against the Meiji government’s execu-tion of ringleaders of the samurai rebellions that


led to the Seinan War without a public trial.

The next attempt at establishing a jury system inJapan was during the 1910s and early 1920s inwhat is known as the Taisho Democracy period.This movement was spearheaded by HaraTakashi, the leader of the Rikken Seiyukai (Friendsof Constitutional Government), who eventuallyformed a cabinet as the first commoner primeminister. During his time at the Ministry of JusticeSchool, Hara studied under Boissonade andadopted his cause of establishing a jury system,but Boissonade’s influence was not all that moti-vated him. The prosecutor-centric Ministry of Jus-tice which emerged toward the end of the Meijiera took the political parties to task over a briberycase known as the Nitto Incident. Furthermore, itapprehended Kotoku Shusui and other socialistsand anarchists in what is called the High TreasonIncident. Shocked by these events, Hara began tothink about how best to control the bloated andpoliticized Ministry of Justice and incorporate itinto the political party system, which was animportant issue for the establishment of politicalparties in prewar Japan. Although Hara wasassassinated, his intentions lived on, and a jurysystem was established not long after his death.What is important to remember here is that thejury system established in prewar Japan was doneso in parallel with the development of party poli-tics; it was primarily the product of a politician-led initiative and not the public’s demands.

The Future of the Lay Judge System

Speaking of politician-led initiatives, the fact thatthe Democratic Party of Japan (DPJ) ousted theLiberal Democratic Party with a call for politician-led initiatives in 2009—the year when the layjudge system was enacted—may have been sig-nificant in its own right. That being said, the layjudge system itself originated in a proposal fromthe Justice System Reform Council which wasestablished by the Obuchi Keizo cabinet, and thebill was signed into law during the KoizumiJunichiro administration. As for the DPJ, its for-mer head, Ozawa Ichiro, once made a point ofsaying that if the DPJ gained control of the gov-ernment, it would review the lay judge system.When viewed in this light, one must admit that itwas entirely a coincidence that the implementa-

tion of the lay judge system corresponded withthe DPJ’s rise to power. It is also uncertain as towhether the DPJ’s call for politician-led initiativeseven included the concept of the lay judge systemas a “political institution,” that is to say, a systemthat was ”one aspect of popular sovereignty.”

Be that as it may, the lay judge system takentogether with the expansion of the powers of thelay Committees for the Inquest of Prosecutions in2009 certainly constitute structural reforms thathave remarkably expanded the influence of citi-zens in the realms of politics and justice. Puttingaside whether citizens wanted such systems orhow aware they are of the systems’ significance,citizens must now more than ever deal with prob-lems that are not easily solved, pass judgment onothers, and live with the outcomes of those deci-sions. In a book that I recently published entitled,‘Watashi’ jidai no demokurash (Democracy and the“Me” Generation), I stressed that the role thatdemocracy plays grows more important as thenumber of problems with no clear answersincreases. When taken in that context, citizens arenow faced with having to pass judgment on anincreasing number of vexing problems that haveno easy answers.

The issue lies with the extent to which peoplehave discussed and understand the relationshipbetween changing times such as these and struc-tural reforms. As I have already pointed out, westill have not reached a point where we can decid-edly state how well established the lay judge sys-tem has become in Japanese society. What isimportant here is not only the immense burden ofbecoming a lay judge and the justness of the judg-ments passed by lay judges, but also how well thesystem can be incorporated into Japanese societyas its democracy progresses forward. A largenumber of questions remain with regard to thefunctioning of the lay judge system and furtherdiscussion of the meaning of citizen participationin trials is required. A great deal of effort is stillneeded to ensure that most people will somedaybelieve that adopting this system was a good idea.

ReferenceTocqueville, Alexis de. 1835/2004. Democracy in

America. Translated by Arthur Goldham-mer. New York: Library of America.


Kawai Mikio is a Professor of the Sociology of Law

at the Department of Law, Toin University of

Yokohama

Department of Law, Toin University of Yokohama 1614 Kuroganecho, Aoba-ku, YokohamaKanagawa, [email protected]

In May 2009 Japan established its lay judge sys-tem which has received a great deal of pressattention since its planning phases for two mainreasons. First, the fact that lay judges are chosenat random from among the general public meansthat justice is no longer somebody else’s problem.Framed in terms of the macro-level impact onJapanese society, debates have focused on thepros and cons of adopting a lay judge system. Thesecond reason is the major change in criminal jus-tice procedures brought about by the new system.This change is expected to substantially affect notonly trials but also investigations, interrogations,and probation. In this article, I will primarily dis-cuss this second set of concerns.

However, this new system cannot be discussedwithout keeping in mind overarching trends inJapanese politics and society. The recent adoptionof the lay judge system was not a solitary reform,but part of a set of reforms to the justice system.One major issue we must consider before we canbegin to characterize the lay judge system is how

to evaluate the previous administration of Japan’scriminal justice system. Starting with a broad per-spective, I will outline the state of affairs beforejudicial reforms were enacted, and having placedthe reform policy in historical context, predictwhat impact that the adoption of the lay judgesystem will have.

The History of Japan’s Adoption of Western Law

Let us briefly look back on the history of criminallaw in Japan. The Edo Era (1600–1868), in whichthe Shogunate unified Japan under a feudalended after the forced opening of Japan’s harborsby the West. With the start of the Meiji Era, Japanadopted a system of governance modeled onWestern systems and established a National Dietand courts in an effort to establish a democraticnation governed by the rule of law. The civil codeinitially drafted was based primarily on a transla-tion of France’s Civil Code, but Japan laterreceived its strongest influence from Germany.The Criminal Code, in particular, uses the Ger-man model.

The second wave of Western legal influencebegan during the U.S. Occupation after the end ofWorld War II. The current constitution was pro-mulgated and the emperor was stripped of hispower and recast as a symbolic figurehead. Onpaper at least, Japan had become a genuinelydemocratic nation governed by the rule of law.

The Dual Structure of Japanese Society

With regard to industrialization, Japan under-went development and came to rival the West,but its systems of governance are not entirelyWestern. In Japan an official, modern nation-statecoexists with a traditional social structure, andthis has come to be called the dual structure ofJapanese society. We must note that some old typeactivities are even illegal.

If we limit our focus to the justice system, it is


The Impact of the Lay Judge System onJapanese Criminal Justice

Kawai Mikio

true that the judiciary is the preeminent officialdecision-making body, but the number of lawyersper capita is extremely low. Immediately afterWorld War II there was not even one lawyer forevery 10,000 persons. It was entirely normal for aregular citizen to have never seen a lawyer in per-son. Recently, there has been a strong call for judi-cial reform, and while the government is in midstof increasing the number of lawyers, there is stillonly one lawyer for every 4,000 persons. Thescarcity of lawyers is proof that the justice systemhas not played a major role in making Japanesesociety function.

Judicial Reforms

In 1999 the Cabinet Office established the JusticeSystem Reform Council which led to the currentround of legal system reforms that, first and fore-most, will increase the number of lawyers. Thesereforms, in essence, are an effort to generatechange so that Japanese society becomes reallybased on legal system. When viewed in this light,these legal reforms can be seen as the third phaseof the transformation of Japanese society into anation-state governed by the rule of law. Thesereforms are generally regarded as a response topressures arising from the globalization of theworld economy.

The current round of judicial reforms was preced-ed by political and administrative reforms all ofwhich can be regarded as pieces of one reformpackage. During the Hosokawa Morihiro admin-istration, four political reform acts were passed in1994 to limit the practice of Diet members actingas advocates for special interest groups, whichhad become customary during the period of unin-terrupted one-party rule. Former prime ministerHashimoto Ryutaro subsequently established theAdministrative Reform Council, enacted the BasicLaw on Reforming Government Ministries, imple-mented administrative reforms and strengthenedcabinet functions. His aim was to inject politicalleadership into operations which had been con-trolled by high-level bureaucrats and to stream-line the bloated government organization.

These political and administrative reforms wereextremely ambitious efforts, but they did little toremedy Japan’s dual structure. In this sense, the

judicial reforms are an attempt at deeper reform.Given this, some anticipate that the lay judge sys-tem could be a policy that overcomes what hasbeen called the “non-maturity” of Japanesedemocracy, while others take the opposing viewthat the system cannot function due to Japanesetraditions. In short, the adoption of the lay judgesystem can be seen as an attempt to resolveJapan’s dual structure.

History of Criminal Justice

Keeping in mind the main trends I outlinedabove, I would now like to turn to the criminaljustice system. Above all, the unique feature ofthe Japanese criminal justice system is said to bethe care with which it operates, or what isreferred to as “legal precision.” This practice pre-supposes very low crime rates, so if the caseloadis not light, there is no way each case can be han-dled with such attention to detail. If legal preci-sion is a unique attribute, it causes distortionselsewhere. Explaining Japan’s low crime rates is acomplicated task, but there is no doubt that itstems from strong social control through commu-nity ties. After the Meiji Restoration, Japan adopt-ed a Western-style police organization, but crimerates have been low since the Edo Era. This fact inand of itself is evidence of the dual structure ofJapanese society. Japan relies on more than its jus-tice system to keep crime in check.

If Japan had intended to maintain this traditionalsystem, it seems strange that it opted to import aWestern-style criminal justice system in the firstplace. In fact, Westernization in this instance wasnot implemented for the sake of crime control.Since the West would not recognize Japan as anation of equal standing, the adoption of the sys-tem was merely window-dressing used for therevision of the so-called Unequal Treaties. In par-ticular, the construction of modern prisons wasimportant in maintaining the appearance of amodern nation. It is doubtful that the Meiji gov-ernment ever intended the laws it compiled toactually be applied to Japanese society. In a nut-shell, the Meiji criminal justice system was aproduct of diplomatic necessity. However, theestablishment of the national police force led to acomplete overhaul of traditional crime controlpractices. The police were not merely figureheads.


They were overseen by the Interior Ministrywhich saw the organization of police forces asuseful for promoting the modernization of Japanfrom stem to stern. It is often said that no coun-try’s police force is as powerful as Japan’s, andindeed, its presence looms large.

History of the Jury System

Japan has had many chances to establish a jurysystem, the first being the period of initial West-ernization during the Meiji period. During thistime, modernization was strongly top-down innature and it would have been unthinkable togive the people a role in the justice system. It wasdifficult enough to implement universal male suf-frage. The next opportunity arose during theTaisho Democracy movement after the peoplehad finally gained a certain amount of power. Ajury system was inaugurated in 1928, the sameyear that universal male suffrage went into effect,but after a time, the courts stopped using it. Themilitary officially discontinued the jury system in1942. This was not necessarily an act of militaryrepression since the system had fallen out of usewell before then. This first jury system, while itwas based essentially on the British and Ameri-can models, was unique in that verdicts weredecided by a majority vote. As such, the systemwas disadvantageous for defendants, and this isthought to be a major reason why it fell out ofuse.

The next chance to establish a jury system wasduring the American occupation after World WarII. It would have been natural to revive the jurysystem given the push to democratize Japan. TheMinistry of Justice, which was negotiating withU.S. Occupation officials at this time, argued thatit would be impossible to establish a jury systemin Japan. To respond to the demands of the Occu-pation and democratize in some form, the min-istry established Committees for the Inquest ofProsecution (CIPs). These committees are com-prised of eligible voters chosen by lot, in the samemanner that lay judges are now selected. TheCIPs determine whether decisions to file or dropcharges by Japan’s prosecutors—who operateunder the principle of discretionary prosecu-tion—were correct and, if necessary, request pros-ecutors to re-examine cases. Given the 99.9% con-

viction rate in Japanese criminal trials, to be pros-ecuted essentially guarantees a guilty verdict.Therefore, the decision to prosecute constitutesthe core of a criminal trial. Incorporating a deci-sion by citizens into this process means that theCIPs are essentially the same as juries. When firstintroduced, the CIPs did not have the power toforce prosecutors to file or drop charges, but theydid make their presence known in several casesand committee members expressed high levels ofsatisfaction with the role they played. As a result,the system has been considered more or less suc-cessful, giving the authorities the confidence toinstitute the new lay judge system. Furthermore,when the current lay judge system was adopted,the CIPs were given the power to force prosecu-tors to file or drop charges.

Assessment of Japan’s Criminal Justice System

Now, let us examine the state of criminal justicetoday. We must not simply believe the NationalPolice Agency’s white papers claims that the lowcrime rate and high rate of convictions on whichJapan has prided itself are due to the high caliberof the police. When viewed in terms of criminolo-gy, the root cause is thought to be that juveniledelinquents are rehabilitated before they canbecome adult criminals. To date, rehabilitationhas been the work of dedicated private citizens,such as volunteer probation officers, workingtogether. Given that Japan was safe before themodern police force existed, the contribution ofprivate citizens comes as no surprise. But the real-ity is slightly more complicated than this. The factis that police officers, prison guards and othercriminal justice professionals who would not nor-mally be involved in probation have been part ofthe rehabilitation process. At times, these officialsengaged in activities beyond the purview of theirduties and they considered rehabilitation workone of the more rewarding aspects of their work.In this sense, we can say that the work of thepolice has contributed to the very low recidivismrate.

Japan’s criminal justice professionals have alwaysbeen expected to catch and punish criminalswhile recognizing that the ultimate goal is theirrehabilitation. While it would be an overstate-ment to say that it is a Japanese cultural tradition


to seek resolution by absolving wrongdoing, thereis an undoubtedly large number of novels,movies, and comic books with protagonists whodiscover that beating the villain does not alwaysfeel good. Since the criminal system is the frame-work for meting out penalties, a large majority ofpersons in custody are released without being for-mally indicted and then unofficially placed undersurveillance by civilians, in order to circumventpunishment. Every year more than two millioncases are sent to prosecutors, but the number ofcases that actually go to trial is less than 500,000.Of those, 30,000 end in prison sentences. Evenwhen the 5,000 cases which result in juveniledetention are added to this number, it is plain tosee that most cases are delegated to private-sectorsupervision. While it is difficult to confirm theactivities of the private-sector, it is safe to consid-er them successful to some degree given the lackof repeat offenses.

Given this context, we could give overall highmarks to the criminal justice system, but it isobviously flawed given that once cases go to trial,99.9% of them end in guilty verdicts. In otherwords, the infallibility of the police and the prose-cutors is staunchly maintained. The general pub-lic believes that the police always catch the realcriminals and major cases have never beenallowed to end without an arrest. For this reason,there was a spate of unjust accusations in majorcases in the 1950s, and it was only in the 1980sthat four death-row inmates were found innocentin retrials. While much progress has been made inovercoming this flaw, persons who should havebeen presumed innocent under the law at eachstage of criminal proceedings have been treatedas guilty. First of all, accused parties have had dif-ficulty in seeing their lawyers, prosecutors’ dis-covery has been insufficient, and bails aftercharge have only been accepted a little more than10 percent; in Japan, bail can be admitted onlyafter charge by a court. In 70 percent of cases,defendants admitted to all charges against themand their lawyers sought only to reduce sentencesby showing how remorseful the defendants were.In almost all of the remaining 30 percent of cases,lawyers haggled over minute details in an effortto merely lessen the charges. It is safe to say thatthose cases in which the debate focused onwhether the defendant was guilty or innocent

have been rare.

Many Western observers feel that the effectivelynon-adversarial practices of Japan’s justice systemhave yielded positive results. While there were ahandful of unjust accusations in major criminalcases, nearly 99 percent of defendants have actu-ally been guilty and their sentences have beencomparatively light. Some have claimed thatJapan adopted the lay judge system even thoughthere were no problems with its criminal justicesystem, but this opinion is limited to criminaljudges and criminologists. It is unacceptable toignore due process and allow decisions to bemade by prosecutors in the interrogation roomeven if the outcome is factually correct.

Major Change is Inevitable

With the adoption of the lay judge system, thecourts which used to merely confirm what theprosecutors had decided now actually handdown rulings. Before the system was instituted in2009, there was a drastic increase in the bail rateand prosecutors’ discovery improved due to theintroduction of pretrial summary procedures. Inaddition, the Supreme Court issued a ruling thatordered police to disclose any notes taken duringtheir investigations when requested to do so bylawyers. Court trials, which had become ritualceremonies for issuing guilty verdicts, are nowtransforming in every way into truly deliberativeproceedings.

However, major change always faces resistance.The prosecutors, who still tend to dislike notguilty verdicts, have not changed. Almost oneyear has passed since the introduction of the layjudge system, but there has yet to be a single notguilty verdict. This is abnormal considering thatseveral hundred guilty verdicts have been hand-ed down. Some claim that all defendants havebeen found guilty because the lay judge system isbeing gradually phased in starting with relativelyclear-cut cases, but the results are still dishearten-ing. Only a handful of cases have seen debatesover innocence and most of those were drug-related cases involving foreigners.

Furthermore, prosecutors have been known to filecharges for rape instead of rape involving bodily


injury—a crime which requires a lay judge trial—in order to avoid the hassle of a lay judge trail.There are also reports of juvenile cases gettingsent back to the prosecutors who then expandtheir written case comments in an effort to ensurethat those cases are not heard by lay judges whenthey are transferred to family court.

I am interested in the impact of lay judges ondeath penalty cases, but no such sentences have

yet been sought from a lay judge trial. The lastorders of execution were issued in July of lastyear, and nearly one year has passed since justiceminister Chiba Keiko placed a moratorium on theuse of the death penalty. Finally, if we are at adefining moment where the once rock-solid foun-dation of the older part of Japan’s dual structureis about to collapse, then I predict that those whoresist this inevitable change will likely be defeat-ed one by one.



Dimitri Vanoverbeke is a Professor of Japanese

Studies (Sociology of Law) at the Catholic

University Leuven

Catholic University LeuvenBlijde Inkomststraat 213000 [email protected]

1. Introduction

The introduction of a jury or lay judge system(saiban-in seido 裁判員制度) is just one of a seriesof major legal reforms initiated since 2001 thathave attempted to fortify the rule of law in Japanand to close the gap between the citizen and thestate. Is this jury system a first for Japan? Japanactually had recurrent debates on introducing ajury system since the very beginning of the Meijiperiod, but it was only in 1923–at the high pointof the Taisho democracy movement–that the JuryAct was promulgated. After five years of prepara-tion, the Jury Act became operative and was inuse until it was suspended in 1943. Despite thefact it operated during the early Showa period,Japan’s first jury system can rightfully be calledthe Taisho system because it was the result of thepolitical and social dynamics that generated theTaisho democracy movement.

Hozumi Nobushige, in an address on April 14,

1923 to an audience of prominent people involvedin drafting the Jury Act, stated that its enactmentsignified a “major revolution in Japan’s legal his-tory” (Hozumi: 261). Prominent scholars in 1923considered establishing juries as one of the mostimportant judicial reforms of their time butenthusiasm faded rapidly as few cases were actu-ally tried by jury. Was this system a failure?

2. The Jury Act of 1923

The 1923 Jury Act stipulates that the jury willdecide by deliberation in criminal trials (Art. 1).Only those crimes that are punishable by death orlife imprisonment would require trial by jury (Art.2). Suspects in crimes with more than three yearsconfinement as statutory sanctions and withinjurisdiction of the regional courts could request ajury trial (Art. 3). However, if a suspect requesteda trial by jury, he could be ordered to pay all relat-ed costs including daily allowances, accommoda-tion and travel expenses of the twelve membersof the jury and substitute members (Art. 106 &107). This was a far from attractive prospect as thecosts of such a trial were very high and unafford-able for most people.

Many crimes were excluded from trial by jury--crimes related to the Imperial family, diplomaticrelations, political rebellions, the Election Act, aswell as army and navy-related crimes (Art. 4).From 1929 onwards, crimes falling under thePeace Preservation Act were also excluded fromtrial by jury. In sum, all political trials wereexcluded from jury trials despite the fact thatHara Kei and other policy entrepreneurs wanteda jury system mainly for political cases that had inthe past resulted in aggressive actions by prosecu-tors, actions which deepened citizens’ distrust ofcriminal procedures.

A jury was to be composed of twelve members(Art. 29) who decided, by majority vote, on theguilt of the accused by answering questions fromthe judge on the facts of the case. Article 91 of the

The Taisho Jury System: A Didactic Experience

Dimitri Vanoverbeke

Jury Act stipulated that if a majority of the jurymembers did not agree on the guilt of theaccused, he or she would be acquitted. No appealwas possible against the decision of the jury (Art.101) if it had been accepted by the court in its sen-tencing (Art. 97) with the exception of finalappeals to the Supreme Court on narrow proce-dural grounds, mainly judges issuing unlawfulinstructions (setsuji説示) to a jury (Art. 102).

The jury was primarily charged with determiningthe facts of a case through examining evidenceand hearing testimony (Art. 71) but exceptionswere numerous. Records of testimony from pre-trial hearings and additional documents couldlawfully be used as evidence in a jury trial if: (a)an accomplice or witness had died or was affect-ed by contagious disease or similar problemswhich made it difficult to summon the person tocourt; (b) if an accomplice or witness made a sub-stantial alteration to his testimony during the trialcompared to his statements during interrogation;or (c) if the accused or a witness refused to testifyduring trial (Art. 73). All documents and testimo-ny relating to the case that were generated out-side the court and which, due to the death of thewitness or person who drafted the documents,could not be reproduced in court could be accept-ed as evidence in a jury trial (Art. 74). Moreover,the president of the court could present such“pre-recorded” evidence and documents to thejury at any time, even after it had begun delibera-tions (Art. 82).

No objection could be made by the defenseagainst the judge’s instructions to the jury (Art.77). These instructions could influence the juryextensively as they included the judge's owninterpretation of the evidence. The judge, more-over, could decide at any stage of a trial that thefindings of the jury were not adequate and assignthe case to another jury (Art. 95). The judge couldimpanel new juries in a case as many times as hedeemed necessary so that the jury’s decision andthe judge’s opinion would be in accordance.

Eligibility for jury duty was restricted to malesover thirty who paid at least three yen in nationaltaxes and were registered as residents for morethan two consecutive years in a village or city(Art. 12). Observers of the prewar jury questioned

the representativeness of the jury as only men of acertain age and wealth were entitled to becomejurors. The total number of people eligible to votein the first general elections of 1928 was19,409,078 but only 1,781,232 were entitled to par-ticipate in a trial by jury in the same year (Toshi-tani 1984: 6). This was less than ten percent ofpeople with voting rights.

The Jury Act indeed was less of a turning pointthan Hara Kei had hoped it would be or thanHozumi claimed it was. The Act in itself providedno radically new vision with regard to the judicia-ry in general or to the participation of lay peoplein criminal proceedings in particular. Neverthe-less, the jury system did operate--after five yearsof costly and intense preparations--from October1, 1928 onward, allowing citizens to participate incriminal prosecutions. The Taisho jury systemwas certainly not the result of inertia or path-like”business as usual“ evolution. In fact, the jurysystem was finally realized, enabling citizens toparticipate in criminal proceedings, albeit in alimited number of cases and in a restricted way.

3. The jury in action

The early reports on the operation of the jury sys-tem praised the new system. On February 23,1929, the Horitsu Shimbun (Law Journal) reportedthat “it is remarkable how the juries' findings arecontrary to the conclusions drawn by judges andprosecutors.” This journal enthusiastically sug-gested that the jury system should be expandedto other areas of criminal procedure. However, byMay 1929 the tone of the Horitsu Shimbun's com-mentary had changed after many acquittalsoccurred in cases which, “if tried by professionaljudges, would certainly have ended with convic-tion.” Horitsu Shimbun even questioned if the jurysystem might not endanger public peace andorder if acquittals happened in too many cases(Toshitani 1984: 8).

As for the mass media, newspaper articlesexpressed surprise over the paucity of jury trialsheld at the request of the accused (Art. 2). Theheadline of an article printed in the Yomiuri Shim-bun on July 31, 1930 read, “The extremely unpop-ular jury: already now claims for reform!” Thearticle predicted that because “not even one-tenth


of the anticipated number of trials” had actuallytaken place, the much anticipated jury systemwill end “achieving a destiny of existing only inname.” Hanai Takuzo, one of the architects of theJury Act, was quoted as lamenting how the Taisho jury system failed to change the perceptionthat “the main problem of the judiciary is exces-sive political action by prosecutors.” Somemonths later on January 15, 1931, the YomiuriShimbun intensified its criticism in an editorialthat asserted, “the jury court is useless and judi-cial authorities will find it difficult to restore theirlost reputation.”

Was the Taisho jury system a failure? SuzukiNobuo, one of the lawyers in a 1929 jury trial atthe Shizuoka Regional Court aptly summarizedthe shortcomings of the jury system. He said thatthe jury system was a failure first because ofproblems with the provisions of the Jury Act; sec-ond because of the difficulties jurors had withescaping the historical legacy of showing respectfor government officials (kanson minpi 官尊民卑);and finally because of the inferior status oflawyers at the time. Many other reasons have alsobeen put forth including the impossibility ofappealing a jury trial verdict and the practice of

requiring defendants to bear all the costs of a jurytrial should they request one. The average totalcost amounted to 386.62 yen, which is equivalentto about 1,300,000 yen today (Fujita 2008: 125).Another reason why few demands for trial byjury were registered and why most defendantsaccused of serious crimes automatically entitlingthem to a jury trial waived that right was fear ofthe damage to their reputations that would resultfrom the publicity generated by newspaper cover-age of the trials. Finally, it was difficult to findlawyers willing to represent a defendant in a jurytrial. Given all of these factors, it should come asno surprise that the number of jury casesremained very limited.

4. Another perspective: a didactic experience

Despite its defects, the Jury Act of 1923 alsoenhanced the rule of law in modern Japan in aless visible but still important way by bringing animpressive number of people into contact withsome aspect of the jury system. Once every fouryears, a list of potential members of the jury hadto be compiled by the heads of villages and may-ors (Art. 17). These lists had to include enoughpeople to fill the number of juror positions that


Table 1: Jury Trials and Outcomes (1928-1943) *1

regional courts assigned to each locality, a num-ber that the courts communicated annually to themayor or head of the village (Art. 22). The head ofthe village selected candidates for jury duty bydrawing lots in the presence of at least three can-didates (Art. 23) and then informed those chosenof their registration (Art. 25, part 2).

At the Aomori Regional Court, for example, not asingle trial by jury was recorded in 1936 or 1937.Yet the list of potential members for jury dutysubmitted in 1937 included a total of 1,048 people.They were farmers (542), retailers (204), owners ofbars and restaurants (14), agricultural managers(4), farm aids (26), administrators (14), fishermen(12), smiths (3), farm tenants (22), teachers (2), etc.(Tohoku University 1989). Even if most candi-dates were reluctant to participate in a jury trial,the process of drafting a list of candidates by localleaders stirred discussions on legal process. More-over, the involvement of villagers with state mat-ters combined with the introduction of generalsuffrage in 1928 intensified political discourse atthe most local administrative level. The jury sys-tem entered towns and village more through theirpreparations for jury trials than by actual trials.

In his groundbreaking writings on law and soci-ety in Meiji and Taisho Japan, Osatake Takekipointed to the importance of didactic effects byreferring to “legal training for the people” (koku-min no hoteki kunren国民の法的訓練) who directly(by being jurors or candidates for jury trial) orindirectly (through newspaper articles, etc.) wereconfronted with criminal justice procedures. Osa-take (1923) also argued that the main cause ofhuman rights abuse is the fact that the peoplehave “a poor knowledge of the law” (horitsushisono toboshisa法律思想の乏しさ).

The didactic effects of the Taisho jury system werenot restricted to “regular citizens.” Judges, prose-cutors and lawyers also learned through involve-ment in trials by jury. The major challenge that ajudge faced was how to comprehensively andconstructively formulate his instructions to thejury (Urabe 1968: 32). A prosecutor had to beextremely careful in deciding whether to indict asuspect due to the greater possibility of a juryrejecting the evidence he presented (Urabe 1968:107). Lawyers had to be more diligent and careful,

aware that an appeal was not possible and thattheir clients had only one chance to prove theirinnocence or argue for a reduced sentence. Cer-tainly, the most important didactic effect of theTaisho jury system was for citizens who “throughthe trial by jury would come to support thecourts” and benefited because “the implementa-tion of the jury system raised the people’s level ofliteracy in legal and political matters” (Urabe1968: 119).

5. Conclusion

In a little less than fifteen years after the jury sys-tem was launched in Japan, 484 jury trials hadbeen conducted. Almost 17 percent ended in a”not guilty” verdict, a rate which diverged greatlyfrom the approximately 98 percent conviction ratein trials by professional judges. The Jury Act wassuspended from April 1, 1943 due to–as Ministerof Justice Iwamura explained in the Diet–theexcessive administrative burden on villages andbecause “the citizens were busy with war” (Toshi-tani 1975: 94).

The legacy of the 1923 Jury Act carried on to thepostwar period. We can read, for example, inArticle 3, Part 3 of Japan’s Court Act (Act No. 59of April 16, 1947) that “The provisions of this Actshall not prevent the establishment of a jury sys-tem for criminal cases separately by law.” Despitesigns that jury trials would be quickly revivedafter 1945, and an erroneous article in the AsahiShimbun on March 6, 1946 that stated the jury sys-tem was operative again, only in the 1990s, in thewake of larger judicial reforms, did the policyproposals on lay participation in the criminal jus-tice system catch fire. These lessons of the Taishojury experiment alongside careful considerationof non-Japanese models of jury systems wouldform the basis of today’s lay judge system.

References

Fujita, Masahiro. 2008. Shiho e no shimin sanka nokanosei: Nihon no baishin-seido, saiban-in seidono jisshoteki kenkyu (Possibility of the Partici-pation of Citizens in the Justice System:Empirical Research on Japan’s Jury Systemand on the Lay Judge System). Tokyo:Yuhikaku.


Hozumi, Nobushige. 1923. "Baishinho no seitei nitsuite" (On the Establishment of the JuryLaw). Hosokai Zasshi 1-4: 261-271.

Osatake, Takeki. 1933. “Shihoken no dokuritsu”(The Independence of Justice). RekishigakuKenkyu 4-5: 321-327.

------. 1926. Meiji keisatsu, saibanshi (History of thePolice and Court in the Meiji Era). Tokyo:Hokodo Kanko.

------. 1926. Meiji bunkashi toshite no nihon baishinshi(The History of the Jury in Japan as MeijiCultural History). Tokyo: Hokodo Kanko.

------. 1923. “Jinken jurin to teiso jurin.” (On Vio-lations against Human Rights and Viola-tions against Virtue). Chu o Horitsu ShinpoFebruary-March 1923.

Tohoku University, ed. 1989. Baishin ho ni kan surushorui tsuzuri (Collection of Documents onthe Jury Act). Sendai: Tohoku University.

Toshitani, Nobuyoshi. 1975. “Sengo kaikaku tokokumin no shiho sanka: baishinsei, san-shinsei o chushin toshite” (Postwar Reformsand the Participation of Citizens in Justice:Focus on the Jury System and the Mixed-

Trials). Pp. 77-172 in Sengo kaikaku:shihokaikaku (Postwar Reforms: JudicialReforms), Vol. 4, edited by Tokyo DaigakuShakai Kagaku Kenkyujo.

------. 1981. “Joyaku kaisei to baishin seido” (TheRevision of the Unequal Treaties and theJury System). Shakai Kagaku Kenkyu 33-5: 1-32.

------. 1982. “Moraigo satsujin baishin saiban”(The Jury Trials of Murders of AdoptedChildren). Pp. 205-251 in Gendai shiho nokadai (Contemporary Legal Issues), editedby Ushiomi Toshitaka et al. Tokyo: KeisoShobo.

------. 1984. “Nihon no baishinho: sono naiyo tojisshikatei no mondaiten” (The Jury Act inJapan: Problems with Content and Opera-tion). Jiyu to Seigi 35-13: 4-12.

Urabe, Mamoru. 1968. Wagakuni ni okeru baishinsaiban no kenkyu: keikendan ni yoru jittai chosa ochushin toshite (Research on Jury Trials inJapan: A Fact-finding Survey based on Per-sonal Accounts). Shiho Kenkyujo Chosa Sosho 9.



ISS Research Report

Kudo Akira is an Emeritus Professor, University of

Tokyo, and a former Professor of Economics at the

Institute of Social Science, the University of Tokyo.

[email protected]

When my first two books, Nichidoku kigyokankeishi (A History of Japan-German BusinessRelations) and I Ge Faruben no tainichi senryaku(I.G. Farben's Japan Strategy) were published in1992, there were three major sentiments whichleapt out from the book reviews and personalcommunications I received. First, some remarkedthat my work “lent itself to publication in foreignjournals,” to which I could only reply that thatvery well might be the case. Another sentimentsimilar to the first but tinged with condescen-sion—or at least that is how it felt to me—wasthat my work “was aimed at a niche audience.”To this I could only respond with a wry grin. Thethird sentiment was the one which rang truest tome: “So you have studied the history of Japanese-German relations. What’s next?” Nearly twentyyears have passed since then and I have come toponder what would happen if I attempted torespond to this query again. The following is asynopsis of my answer.

My Interest in the History of Japanese-German/Euro-Asian Relations

First, let me discuss why I have studied the histo-ry of Japanese-German relations and why thestudy thereof poses challenges. In essence it istwo separate questions, why Germany and whyJapan? When answering the former question, sev-eral replies immediately come to mind. Germany,economically and otherwise, is an importantcountry, it has been a driving force of Europeanintegration, and it is the United States’ mostimportant partner in continental Europe. But atthe same time I think that as research subjectseverything (not just nations) throughout historyare equally deserving of attention, and an ideathat comes to mind is that things only becomeunequal by way of a researcher’s interest in anissue. If this is true, then I am obliged to explainmy interest.

This obligation also applies to the question ofwhy Japan. In fact, it applies even more so.Although I am a researcher who was born andraised in Japan and thinks in Japanese, it obvious-ly does not necessarily follow that I should dealwith Japan. Here, the nature of the interest I havein the issues is called into question even moresharply.

If this is the case, then why Germany and whyJapan are not the right questions to ask. Rather, Ithink I should reply to the original query of “whyJapanese-German relations?” My immediate replyto this question—or should I say the reply I havepondered repeatedly over the years—is as fol-lows.

First, Japan and Germany developed an impor-tant partnership starting in the mid-nineteenthcentury and continuing through the twentieth

A Personal Historiography of Japanese-German/Euro-Asian Relations

Kudo Akira

century. With regard to politics and diplomacy,there was both confrontation, as typified by theSiege of Tsingtao (China) in 1914—known then asthe Japanese-German War—and cooperation, asseen with the conclusion of the Tripartite Pact in1940. One might say that this relationship of con-frontation and cooperation was more significantfor Japan than for Germany and that this signifi-cance declined after World War II, but that is aseparate issue. What I will stress here is simplythe importance of Japanese-German relations inthe realms of politics and diplomacy.

As for economic ties, there was competitionbetween Japanese and German companies in theglobal marketplace—Germany often accusedJapan of “social dumping” both before and imme-diately after the war—and collaboration via tech-nology licensing. In the high-growth era after thewar, the direction of transfers was from Germanyto Japan, but technology later began to flow in thereverse direction. Here, too, the issue that thisbilateral economic relationship of competitionand collaboration grew comparatively weaker atsome point after the war arises, and if one looksback to before the war, one could also note thatthe relations between the two countries were frag-ile then. In either case, I will leave this issue—which is thought to relate to the existence of ahegemonic United States—on the back-burner.

My second reason for focusing on Japanese-Ger-man relation is, in a few words, the parallelismevident between the histories of the two nations.Much emphasis has been placed on the sharedpolitical and economic backwardness of bothcountries from the mid-nineteenth century untilthe middle of the twentieth century, with variousexamples drawn from the study of Japanese his-tory in particular. I feel strongly that the theoriesabout this backwardness must be reexaminedwith a focus on the nations’ bilateral relationshipbecause time lags make it hard to define this situ-ation as a case of parallelism, but I will leave thispoint aside for the time being. In any case, thehistorical parallels after the war were plain asday: both countries lost the war as Axis nations,were occupied thereafter, and reformed andrebuilt into economic powers. Some might saythat this postwar parallelism faded away at somepoint—again this is thought to pertain to the rise

and fall of American hegemony—but let us justleave it at that.

The third reason is the record of the two nationsstudying each other. For well over a century, vari-ous actors have studied a wide range of sectors inthe other nation. It goes without saying that fromthe late nineteenth century and throughout thetwentieth century this primarily took the form ofJapan studying Germany. Without question, theGerman or Prussian models were vital to theestablishment of the Meiji state. In the field ofscholarly thought alone, the study of Germanyprogressed steadily from Staatslehre and Sozialpoli-tik to Marxism. Meanwhile, German companiesalso served as models for Japanese companies.For example, when the Mitsubishi zaibatsulaunched a chemical company in the 1930s, itsslogan was “Bound to be the I.G. Farben of theEast.” Here, some may say, and rightfully so, thatJapan’s study of Germany was replaced by itsstudy of the United States, and for a time after thewar, there is evidence—albeit limited to the fieldsof business and economics—of the study of Japanby Germany. In any case, let us leave this issueaside for the time being.

While not entirely orderly, the paragraphs aboveconstitute my initial answer to the question of“why Japanese-German relations?” However,several more questions, some of them which Ipose myself, immediately arise therefrom. Thefirst question is whether my interests are limitedto nations and their bilateral relations. My answerto this is a resounding “no”. At some point afterthe war there was a staged progression towardregionalization in the form of European integra-tion, and this gave rise to the issue of “Euro-peanizing” Germany. European integration led tothe incorporation of Japanese-German relationsinto Japan-Europe relations. Meanwhile, regional-ization also spread through Asia despite theregion’s differences from Europe. It was not pos-sible for Japan to remain immune to this trend.Regionalization was a global phenomenon and asituation emerged which could be considered therelativization of nations. This is how Japanese-German relations came to be one facet of Euro-Asian relations. Therefore, if one takes an interestin the history of Japanese-German relations, onehas no choice but to expand one’s interests to


include Euro-Asian relations.

This is not to say that my research is restricted tointer-regional and bilateral ties either. My ulti-mate interest is in depicting a wider picture of theworld economy, especially during the twentiethcentury. I believe that understanding the historyof Japanese-German/Euro-Asian relations is oneapproach to that end. Moreover, I maintain thatunderstanding Japanese-German/Euro-Asianrelations is absolutely essential for understandingthe world economy of the twentieth century, inwhich the hegemony of Great Britain was fol-lowed by that of the United States. Earlier in thisarticle when I mentioned the importance ofJapan’s partnership with Germany dating back tothe mid-nineteenth century, I was referring to theimportance of their relationship with regard tounderstanding its impact on the world economy.While I do not have time to go into details, thisunderstanding is also related to the recognitionthat private companies are the primary shapers ofstructures and processes in the world economy.

Framing the History of Japanese-German Rela-tions in the Twentieth Century

In the previous section I have attempted toanswer the questions, be they self-posed or other-wise, of why I have researched Japanese-Germanand Euro-Asian relations. So what exactly am Iattempting to elucidate about Japanese-Ger-man/Euro-Asian relations? I would have tosketch an outline of my analytical framework, butI do not have enough time or space to do thathere. Let me get straight to the point of Japanese-German relations in the twentieth century. First, Imust explain briefly that for the purposes of myargument here, the twentieth century refers to thetime period from 1914 to 1990. The starting pointof 1914 requires no explanation as it is the year inwhich World War I erupted. Aside from 1914,1890 and 1868-71 could be alternative startingpoints, but I would like to focus on the irre-versible impact of World War I. I chose 1990 as theend point because it is the year the Cold Warended. One issue with these dates is that they donot correspond to events in Asia as clearly as theydelimit European history, but if one assumes theend of the Cold War was a globally transformingevent then once again differences among regions

should be discussed to develop our understand-ing of events as a whole.

The next question is why I choose to focus on thehistory of economic relations. As I mentioned ear-lier, my personal interests play a large part in this,of course, but that is not the only factor. The histo-ry of Japanese-German relations has many moreups and downs politically than it does economi-cally and, in light of this, more research has beenconducted on the political history of the relation-ship than its economic history. I try to incorporatethe outcomes of political history research intoeconomic history in order to further develop apolitical-economic history of relations betweenthe two nations.

To achieve this I am currently preparing to pub-lish a three-volume work entitled Nijusseiki nichi-doku keizai kankeishi (The History of Japanese-Ger-man Economic Relations in the Twentieth Centu-ry, vol. I: International Orientation, vol. II: Busi-ness Systems and vol. III: Business) and a booktitled Nihon to doitsu: nijuisseiki nichidoku keizaikankeishi (Japan and Germany: The History ofJapanese-German Economic Relations in theTwenty-first Century). I began working on thesebooks immediately after I published Nijusseikidoitsu shihonshugi (Twentieth Century GermanCapitalism) and Gendai doitsu kagaku kigyoshi (TheHistory of Modern German Chemical Compa-nies) in 1999. In my forthcoming work, I defineJapanese-German relations in terms of interna-tional orientation and business systems, pickingup where I left off in my earlier work on businessrelations. In the end the work grew to encompassthree volumes. I have not reached a final conclu-sion on how to integrate the separate strands ofinter-state relations and business relations, anissue that I touched on earlier. Therefore, I havenot decided whether or not I will incorporatebusiness relations into my aforementioned bookon twenty-first century Japanese-German eco-nomic ties. In addition, I plan to publish Japanese-German/European Economic Relations, a collectionof the papers that I have presented in English, aswell as a collection of papers on the methodologyof relationship history. Now I must also developthese projects, and every day I am reminded ofthe old proverb, “Art is long, life is short”.


Be that as it may, ten years have passed since Ibegan these projects and I was not able to finishthem before retiring from the University ofTokyo’s Institute of Social Science. Although Ikept busy in the meantime co-editing volumessuch as Doitsu keizai (The German Economy, co-edited with Tohara Shiro and Kato Eiichi, 2003),German and Japanese Business in the Boom Years (co-edited with Matthias Kipping and Harm G. Schröter, 2004), Gendai Nihon kigyo (ModernJapanese Companies, 3 vols., co-edited withKikkawa Takeo and G. D. Hook, 2005-2006), Kigyobunseki to gendai shihonshugi (Analysis of Enter-prise and Modern Capitalism, co-edited withIhara Motoi, 2008), and Gendai sekai keizai no kozu(Composition of the Modern World Economy, co-edited with Baba Hiroji, 2009), I feel now I wasneglectful.

Meanwhile, while I was preparing to publish thethree volumes of Nijusseiki nichidoku keizaikankeishi, more topics that piqued my interestcame to light. These included diplomatic rela-tions, military relations, Japan and Germany’srespective relationships with China, race issues,and mutual recognition between Japan and Ger-many. It became also clear that researching thesetopics was more than I could handle on my own,so I enlisted the help of Tajima Nobuo, the preem-inent researcher of the political history of Japan-ese-German relations. Together we called on ahost of researchers with significant achievementspertaining to these topics and co-edited Nichidokukankeishi, 1890-1945 (The History of Japanese-Ger-man Relations: 1890-1945, 3 vols., 2008). Severalreviews have been written about this collection,

and as far as I can tell by reading these, thereviewers grasped the objective of this project,and assessed all of the chapters as high-qualitywork. Tajima and I are now planning to publishtwo collections of papers, Oa kankeishi, 1890-1945(The History of Euro-Asian Relations: 1890-1945)and Sengo nichidoku kankeishi (The History of Post-war Japanese-German Relations) as extensions—although they are more than extensions sinceboth works cover new issues—of Nichidokukankeishi, 1890-1945. For this reason alone, we arevery grateful for the positive reviews of the three-volume work.

Furthermore, Tajima and I, together with ErichPauer, one of the contributing authors of Nichi-doku kankeishi, 1890-1945, have recently publishedJapan and Germany: Two Latecomers to the WorldStage, 1890-1945, 3 vols. (2009). This English lan-guage compilation contains several new chaptersby German authors, and approximately one-thirdof the content differs from the original Japaneseversion. We would also like to publish Englishversions of Oa kankeishi, 1890-1945 and Sengonichidoku kankeishi. Besides, quite some time haspassed since I last published in English (Japanese-German Business Relations: Cooperation and Rivalryin the Inter-war Period, 1998). For these reasons, Ihope that Japan and Germany: Two Latecomers is aswell-received as its Japanese version was.

* This article is a partial transcription of “AnIntroduction to the History of Japanese-German/Euro-Asian Relations”, a presentation given at theShaken Seminar on March 16th, 2010.



ISS Research Report

Owan Hideo is a Professor of Labor Economics at

the Institute of Social Science, the University of

Tokyo.


Judicial Activism in Interpreting the Patent Lawon Invention Remuneration

In the early 2000s, Japanese firms were alarmedby a series of court rulings that went againstdefendant firms which were ordered to pay anunprecedented amount of compensation to theplaintiff employees for their inventions. The mostnotable damages award was in the 2004 NichiaCorporation case in which the district court ruledthat Nichia Corporation should pay twenty bil-lion yen to the inventor of a blue light-emittingdiode (LED).1

The rights and liabilities arising from employee

inventions are governed by Section 35 of thePatent Law in Japan. Section 35 assigns the rightsto the employee’s invention to the employee, butstipulates that: (1) the employer shall receive thenon-exclusive license (i.e., the shop right) withoutpaying compensation, as in the U.S.; and (2) theemployee who vests the right to obtain a patentor the patent right in the employer shall have theright to receive a “reasonable” remuneration, asin Germany. However, “reasonable” was notclearly defined before the 2005 amendment exceptthat the amount of such remuneration should bedecided by reference to the employers’ profitsfrom an invention and the contribution made bythe inventor. This ambiguity allowed businessleaders to believe that their firms would bejudged to be fully complying with the Patent Lawif they had implemented formal provisions forinvention remuneration, regardless of the amountto be paid, because employees had indicated theiracceptance of the provisions by agreeing to workfor the firm.

Therefore, it upset business leaders when thecourt deviated from this previously assumedlegal principle. In the Olympus case, the TokyoHigh Court (2001) and the Supreme Court (2003)held that the compensation plan that the firm hadunilaterally determined was invalid and, irrespec-tive of the existence of a compensation plan, thefinal authority to decide the amount of remunera-tion was vested in the court. The Supreme Courtruling in the Olympus case encouraged manyother inventors to file lawsuits demanding addi-tional compensation for their inventions. Theannual number of such lawsuits filed in districtcourts had been zero to two until 2000, butincreased to ten cases in 2004.

Incentive Pay or Windfalls? A Change in InventionRemuneration Policies among Japanese Firms

Owan Hideo

1 Nichia Corporation and the inventor, Shuji Nakamura, eventually agreed on the payment of ¥840 million under a settlement coordinated bythe Tokyo High Court. The amount is still the largest ever made to an employee of a company as compensation for an invention in Japan.

Economic Impacts of Invention Remuneration

Although there are a variety of compensationplans implemented by Japanese firms, a typicalplan consists of two parts: (1) fixed and nominalpayment at the time of filing a patent applicationor registration, and (2) contingent, revenue-basedpayments which depend on realized sales, profitsor royalty income. Some plans have upper limitsto payouts per year or per patent.

Until recently, many Japanese firms would payonly a nominal amount of compensation at thetime of patent filing or registration to the inven-tors. It was only in late 1990s that most firmsstarted upgrading their remuneration provisionsin the belief that utilizing and defending theirown intellectual property rights could reinforcetheir competitive advantage, the 1998 Amendmentto the Patent Law that raised the value of a patentby shortening the time it took to receive a patentgrant and by making it easier to obtain relief forpatent infringements, and the increase in lawsuitfilings over remuneration for inventions in thelate 1990s. According to a survey of 347 firms list-ed in the Tokyo, Osaka, and Nagoya StockExchange conducted by Onishi in 2005 under thesponsorship of the Institute of Intellectual Proper-ty (IIP), the number of firms with revenue-basedcompensation increased from 199 in 1995 to 299 in2005 (Onishi 2006; 2010).

Onishi (2010), using the IIP firm survey, findsthat: (1) the introduction of fixed payment perpatent filing or registration has increased thenumber of patent filings but reduced their quality,and (2) the introduction of revenue-based com-pensation plans does not affect the quantity orquality of patents. The results generally suggestthat compensation plans may have affected filingbehavior, but have little impact on inventiveefforts or productivity. Owan and Onishi (2010),using a survey conducted by the Research Insti-tute of Economy, Trade, and Industry (RIETI) ofover 5000 inventors who applied for patentsbetween 1995 and 2002, evaluate the impact ofrevenue-based compensation policies on the R&Dperformance. The performance measures they useinclude the number of patents produced from aresearch project, the inventors’ own evaluationsof the economic value of their patents and the

commercialization of the patents. Again, they findlittle impact on either the quantity or quality mea-sures of inventive productivity.

Why didn’t monetary incentives improve R&Dproductivity?

There are three plausible explanations of why paypractices are little associated with any R&D pro-ductivity measures. First, rewards may be toosmall or too infrequent. The IIP firm survey askedthe question “How many inventions will typicallybe eligible for remuneration of over one millionyen per year” (Onishi 2006). 43 percent of thefirms that answered the question chose “none.”The true ratio may be even higher assuming thatfirms that pay only limited compensation or do soinfrequently were much less likely to answer thequestion or chose the response “depends on theyear” (11 percent) instead.

Second, it is possible that R&D researchers aremotivated primarily by intrinsic rewards and notmonetary incentives. Owan and Nagaoka (2010)confirm this view using the RIETI inventor sur-vey. When asked what motivated their work,inventors tend to rank very highly “satisfactionfrom contributing to the progress of science andtechnology,” and “satisfaction from solving chal-lenging technical problems.” These rankings arehighly correlated with their R&D productivity. Incontrast, monetary incentives are ranked verylow and are little correlated with R&D productivi-ty. But, it should be also noted that inventorsmight not be motivated by monetary incentivesbecause the awards are too small and infrequentto be cared about.

Thirdly, R&D researchers are not well-informedon what kind of remuneration policies their firmshave. According to a survey of firms conductedby the IIP in 2002, only 17 percent of IP managersbelieve that their employees “broadly understandtheir invention remuneration policy” or “knowwhat types of remuneration exist in their firm.”The rest believe that the employees are not wellinformed of their remuneration policy.

We have confirmed this third point in ouremployer-employee matched dataset. The 2005IIP firm survey provides firm-level panel data on


the remuneration policies for employee inven-tions from 1990 through 2005, while the supple-mental portion of RIETI’s inventor survey askedwhat remuneration policies inventors believedwere in effect as they developed the inventionsleading to patent applications filed between 1995and 2002. When we examine how closely inven-tors’ beliefs matched their firms’ actual policies,the discrepancies are enormous. For example, 40percent of inventor-employees of firms in the IIPsurvey with revenue-based remuneration policiesdid not know those policies existed.

Why Do Firms Want to Offer Windfalls RatherThan Incentive Pay?

Business leaders and IP managers like to arguethat they introduced revenue-based remunerationin order to encourage innovation, but the limitedresources allocated to educating employees aboutremuneration policies contradicts their claim.Instead, many observers argue that most firmshave created such policies primarily because theyneeded to comply with Section 35 of the PatentLaw.

This widespread reluctance to disclose details oftheir pay policies may indicate either that firmsbelieve their remuneration policies do not havemuch incentive effect (possibly due to small andinfrequent payouts and long delays) or that theyare concerned about some downsides to inven-tion remuneration. Whatever the reason, it isobvious that there would be no incentive effect ifmany employee-inventors essentially perceive theremuneration for inventions as windfalls.

If firms are rational and had good reasons for notpromoting remuneration policies as a means tomotivate employees, changing the law to requirefirms to disclose these policies and explicitlynegotiate with employees may have a downside.One possible concern might be equity. Many largefirms are diversified and the revenue shares ofdivisions vary. If remuneration is proportional tothe revenue an invention generates, thenresearchers in large divisions are likely to have anadvantage over those in small ones. Furthermore,patenting inventions may be more difficult insome technological fields than in others. If thegaps in the remuneration payouts across divi-

sions become substantial, those in disadvantageddivisions may become demoralized. Another con-sideration is the contributions of non-R&D divi-sions. Successful commercialization often requiresthe coordinated efforts of many divisions, so whywould a firm only reward those in the researchgroup? Maintaining equal treatment encouragescooperation and promotes partnership.

Secondly, management might be concerned aboutwhat economists call the “multitasking agencyproblem” (Holmstrom and Milgrom 1991).Researchers might have other important taskssuch as safety testing, producing materials forsalespeople and customers, training new employ-ees, etc. There might also be other aspects toinventive activities than the number of patents orrevenue generated such as developing technicalcapabilities in the long run. Offering compensa-tion schemes that depend only on the filing ofpatents or the revenue generated may cause theemployees to distort their allocation of time,attention and energy away from the optimal mixover tasks for the employer. For example,researchers may prefer not involving newemployees who need training because havingmore participants may dilute their share of remu-neration if a project succeeds. Involving lesstrained employees, however, may be indispens-able to developing new talent and passing techni-cal know-how to younger employees in the R&Ddivision.

Thirdly, as Owan and Nagaoka (2010) discuss,extrinsic rewards such as remuneration for inven-tions may crowd out intrinsic motivation, a prob-lem similar to the multitasking agency problem.When presented with a compensation schemethat depends only on the success of projects, risk-averse agents may shift towards safer projectsthat will likely generate some patentable technol-ogy or focus more on incremental technology thatis likely to be used in existing products. Such dis-tortions are especially costly when researchers arealready motivated intrinsically and pursuingrisky but potentially highly profitable projects.

If these concerns are real, management will facetrade-offs. On one hand, insufficient remunera-tion will reduce the incentive effect as well asraising the legal risks. On the other hand, paying


generous remuneration might cause the equityand incentive problems noted above. The surveyconducted by the IIP in 2003 offers some clues. Inanswering the question, “What impacts wouldyou expect if the amount of remuneration drasti-cally increases?”, a majority of respondents chose“Increased dissatisfaction due to greater pay gapsbetween the research areas where patenting iseasy and those where it is not,” and “Greaterunfairness due to rewarding only inventorsbecause successful commercialization depends onmultiple factors.”

A Rise in Invention Remuneration after the 2005Amendment of the Patent Law

Due to business leaders and policymakers' con-cerns that inventor lawsuits might negativelyaffect businesses, Section 35 was amended in 2004and enacted in January 2005. Article 4 of therevised Section 35 provides that, for the amountof compensation paid to an inventor to be consid-ered “reasonable,” an employer must ensure that:(1) a negotiation with the employee takes place toset standards for determining the value of aninvention; (2) these standards are disclosed; and(3) the employees are consulted on the calculationof the value of an invention.

This revision is intended to require the court toput more weight on procedural rationality ratherthan the adequacy of the amount of compensa-tion. Presumably, if the courts accept that com-pensation plans followed the above “reasonable”procedure, they cannot question the adequacy ofthe amount paid out unless the circumstanceschange drastically or if the invention in question

generates benefits much beyond what wasexpected.

Although the amendment will constrain judicialinvolvement in interpreting the Patent Law, it alsorequires more disclosure of firms’ policies andmore employee involvement. The 2005 amend-ment is a large-scale natural experiment. It causedmany Japanese firms to change their ways ofdetermining and implementing their remunera-tion policies for employee inventions. It certainlygranted more bargaining power to employees inR&D divisions and requires more effort by firmsto justify their pay policies.

Table 1 below shows how the actual payment ofremuneration for employee inventions changedafter the 2005 amendment. The average payoutamong 700 actively patenting firms increasedfrom ¥7.4 million per firm in 2003 to ¥11.7 millionper firm in 2007. This 59 percent increase inrewards for inventors within a few years andexpectations of further increases in the futurecould have a significant impact on their behavior.More importantly, firms now believe they’relegally required to explain to their employeeshow their invention remuneration policies aredesigned. Inventors can see how much monetaryreward they could receive through successfulR&D efforts and will not see the remunerationpayouts as windfalls any more.

What will the impact be? Two plausible argu-ments

What will be the overall impact of the increase inremuneration for employee inventions? First,


Table 1. Firms paying invention remuneration and average payouts

invention remuneration policies will now bedesigned more as incentive schemes rather thanas measures taken to comply with the Patent Law.Employee involvement in designing compensa-tion formulas might also help to enhance theeffectiveness of the schemes. In the long run, it isalso possible that the increased compensation willhelp to attract talented young researchers intoindustries. If such predictions are borne out, therewill be a positive impact on the R&D productivityof Japanese firms.

The second possibility is that, if the concernsabout monetary incentives for inventors dis-cussed earlier are real and low-powered incen-tives for inventors are rather optimal, the legallyenforced introduction of new remuneration poli-cies will simply raise the costs or even adverselyaffect R&D productivity and firm profitability.This potential downside of the policy changecould be a substantial blow, especially for smalland medium-sized firms where the issue of equi-ty and the multitasking agency problem could besubstantial. It will take several more years to seethe first reliable evaluations of the overall impactof the changes to the Patent Law and firms' prac-tices on inventive efforts and R&D productivitygiven the time lags in every step of causal rela-tionships between the changes in the law andR&D outcomes.

References

Holmstrom, Bengt and Milgrom, Paul. 1991.“Multitask Principal-Agent Analyses: Incen-tive Contracts, Asset Ownership and JobDesign.” Journal of Law, Economics and Orga-nization 7 (special issue): 24-52.

Onishi, Koichiro 2006. “Do Compensation Sys-tems for Employee Inventions IncreaseIncentives for Researchers? Evidence fromJapanese Panel Data,” (unpublished).Included in the special report submitted toJapan Patent Office, Institute of IntellectualProperty, 2006.

------2010. “The Productivity Effects of Compensa-tion Plans for Employee Inventions: NewEvidence from Japanese Panel Data.” Work-ing paper, Osaka Institute of Technology.

Owan, Hideo and Nagaoka, Sadao. 2010. “Intrin-sic and Extrinsic Motivation for Inventors.”RIETI Discussion Paper.

Owan, Hideo and Onishi, Koichiro. 2010. “Incen-tive Pay or Windfalls: Remuneration forEmployee Inventions in Japan.” RIETI Dis-cussion Paper.



A new website for the ISSContemporary Japan Group seminar

series is now available

http://web.iss.u-tokyo.ac.jp/cjg/

The new website provides the information on anupcoming seminar as well as the previous ones. We hope you enjoy our new website and arelooking forward to seeing you at our upcominglecture!

ISS Contemporary Japan Group at the Instituteof Social Science, University of TokyoISS Contemporary Japan Group seminar series provides English-speaking residents of the Tokyo area with anopportunity to hear cutting-edge research in social science and related policy issues, as well as a venue forresearchers and professionals in or visiting Tokyo to present and receive knowledgeable feedback on their latestresearch projects. Seminars are open to everyone. Admission is free and advance registration is not required. Forinquiries, please contact the seminar organizers: Professor Hiroshi Ishida ([email protected]), ProfessorGregory W. Noble ([email protected]), or the coordinator, Satsuki Takahashi ([email protected]).Photo by Takahashi Satsuki (ISS)

Tom GinsburgProfessor of Law at the University of Chicago

Legal Reform in East Asia: The Politics of Competitive Modern-ization

March 17, 2010

Abstract:This paper analyzes the major structural legal reformsrecently enacted in Japan, Korea and Taiwan. Over thepast twenty years, all three countries have transformedtheir legal institutions to be more transparent and partici-patory. These reforms include the adoption of lay partici-

pation in criminal trials, legal training reform, expansion of administrative law regimes, and judi-cial change. We characterize these reforms as the products of competitive modernization, a distinctfeature of the Northeast Asian region. Though the substantive reforms in the three jurisdictions aresimilar, the processes by which reforms were adopted also reveal important features of local politi-cal dynamics.

Katherine Tegtmeyer PakAssociate Professor at the Departments of Asian Studies andPolitical Science, St. Olaf College in Minnesota

What makes a good citizen? Citizenship Ideals in JapaneseHigher Education

May 13, 2010

Abstract:Many different institutions craft ideals of good citizen-ship. Yet most of the civil society literature focuses exclu-sively on non-profit and non-governmental organiza-tions. Japanese universities’ reputations rest on various

ranking systems that assess their success in their core missions of research and preparing studentsfor the labor market. However, pursuing these top priorities does not preclude them from shapingparticipation in politics and civil society. Through dozens of narrative interviews at fourteen uni-versities of varying status in Niigata Prefecture and the Tokyo area, I have learned how educatorsintroduce students to active citizenship practices through courses and co-curricular activities. Theprograms are not universal, but they are expanding with support from university administratorsand government agencies.

These programs coincide with many plans promoted by international civic engagement educationadvocates such as the OECD and the UN, even though the Japanese professors organizing themremain largely unaware of the international conversation. Likewise, the international debates over-look Japanese efforts in this area. Four ideals, in particular, are advocated repeatedly by theseJapanese educators: social action should be based in knowledge; people should attend to issuesclose at hand; action should be embedded in social networks; and people should cultivate theirindividuality. I argue that understanding these ideals and the educational practices in which theyare embedded gives us a richer, more complete understanding of Japanese citizenship in general.


ISS Contemporary Japan Group at the Instituteof Social Science, University of TokyoISS Contemporary Japan Group seminar series provides English-speaking residents of the Tokyo area with anopportunity to hear cutting-edge research in social science and related policy issues, as well as a venue forresearchers and professionals in or visiting Tokyo to present and receive knowledgeable feedback on their latestresearch projects. Seminars are open to everyone. Admission is free and advance registration is not required. Forinquiries, please contact the seminar organizers: Professor Hiroshi Ishida ([email protected]), ProfessorGregory W. Noble ([email protected]), or the coordinator, Satsuki Takahashi ([email protected]).Photo by Takahashi Satsuki (ISS)


Yuniya KawamuraAssociate Professor of Sociology at the Fashion Institute ofTechnology (F.I.T.) / State University of New York

Fashion as an Institutionalized System: Japanese High Fashionand Street Fashion as Case Studies

June 16, 2010

Abstract:I treat fashion as an institutionalized system. This studyis a macro-sociological analysis of the social organizationof Japanese street fashion and a micro-interactionistanalysis of teen consumers who form various subcultures

which directly and indirectly dictate some of the latest fashion trends. It shows the interdependencein the production process of fashion between institutions within the industries and Japanese teens.Street fashion in the fashionable districts of Tokyo, such as Harajuku and Shibuya, is independentof any mainstream fashion system and goes beyond the conventional model of fashion businesswith different marketing strategies and occupational categories that are becoming increasinglyblurry. Fashion is no longer determined by professionally trained designers but also by the teenswho have become fashion producers.

My work is influenced by Harrison White’s study on the dealer-critic system in nineteenth centuryFrance and Howard Becker’s work on art worlds that pays attention to individual networks withinthe art community. My current fieldwork on Japanese street fashion and subcultures is an extensionof my previous research on high fashion focusing on Japanese outsider designers in the Frenchfashion system. I compare and contrast the systems of high fashion and street fashion, and investi-gate the process of making street fashion happen. I am interested in how fashion is created, sus-tained and reproduced. I also explore why some Japanese youths choose to dress in distinctive andoutrageous styles, what these styles represent and symbolize, and how the youths communicateand interact with each other to become a member of a specific subculture.


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宇野重規（著）�『＜私＞時代のデモクラシー』�（岩波新書）2010年4月�

水町勇一郎（著）�『労働法　第3版』�（有斐閣）2010年3月�

辻村みよ子・大沢真理（編）�『ジェンダー平等と多文化共生�　－複合差別を超えて－』�（東北大学出版会）2010年3月�

田中亘・飯田高（訳）�スティーブン・シャベル（著）�『法と経済学』�（日本経済新聞出版社）2010年1月�


Recent Publications by ISS and ISS Staff*For more publications, please visit the ISS Homepage (http://jww.iss.u-tokyo.ac.jp/, http://www.iss.u-tokyo.ac.jp/).

Recent Publications by ISS and ISS Staff*For more publications, please visit the ISS Homepage (http://jww.iss.u-tokyo.ac.jp/, http://www.iss.u-tokyo.ac.jp/).

Tsujimura Miyoko and Osawa Mari (eds.)�『Gender Equality in Multicultural Societies: Gender, Diversity,� and Conviviality in the Age of Globarization』� (Tohoku University Press) 2010年3月�

中村圭介（著）�『絶望なんかしていられない�　救命救急医ドクター・ニーノ戦場を駆ける』�（荘道社）2010年5月�

丸川知雄・安本雅則（編著）�『携帯電話産業の進化プロセス�　日本はなぜ孤立したのか』�（有斐閣） 2010年6月�

石川博康（著）�『「契約の本性」の法理論』�（有斐閣） 2010年8月�

馬場康雄・平島健司（編）�『ヨーロッパ政治ハンドブック第2版』�（東京大学出版会）2010年5月�


東京大学社会科学研究所Institute of Social Science, the University of Tokyo

The Five Distinctive Missions of the ISS

I . Promotion of interdisciplinary research through Institute-wide Joint ResearchProjects

II . Study of the contemporary world and of contemporary Japan through jointresearch projects of various forms

III. Creation of a research infrastructure to support social science research (SSJData Archive, and ISS Library)

IV. Creation of an international hub for research on contemporary JapanV. Promotion of international academic exchange

Social Science Japan - University of Tokyonewslet.iss.u-tokyo.ac.jp/ssj43/ssj43.pdf · Sato Iwao...

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