Who Defends Japan?: Government Lawyers and Judicial System Reform in Japan

Abstract

Major reforms have occurred following the 2001 recommendations of Japan’s Justice System Reform Council. This paper describes a novel test of the impact of the judicial system reforms: analyzing continuity versus change in how the Japanese government defends especially claims under public law. It also marks the first study in English describing how the Japanese government manages litigation matters, and particularly the work of government lawyers (shomu kenji) in the Ministry of Justice (MoJ).

We found that there has not been any large aggregate increase in administrative law cases, nor indeed in other litigation involving the government. However, there has been increased litigation in certain areas. There also seems to be more variance in outcomes, hence the risk of significant losses. Second, following recent reforms to civil and court procedures, the pace at which cases proceed through trial has accelerated somewhat. Third, the government has lost some major cases and faces further large-scale claims.

There has not been any significant change from the system of organizing litigation services centred on shomu kenji. Specialized litigation involving competition law or patent law is conducted solely by the relevant government agency. Litigation involving local governments is largely left to them, and they mostly outsource this work to bengoshi (private lawyers). The Minister of Justice also has the power to designate shitei dairinin (non-lawyers) from other ministries in administrative law suits.

Key characteristics of the organization of litigations services within the MoJ remain intact. The shomu kenji mostly are kenji (criminal prosecutors), and some judges on short-term secondments. The number of jimukan (administrative staff), non-lawyers but who usually have some legal training, has risen to help process cases faster. It is rare for the MoJ to outsource work to bengoshi. Instead, the MoJ has begun to hire some bengoshi on short-term contracts. In addition, there have been only limited changes in the ways in which the Japanese government organizes litigation services involving (only or mainly) officials other than shomu kenji, as in competition law, patent disputes, and tax disputes.

Thus, organizational and social structures are only adjusting slowly and in subtle ways. Yet longer-term pressure may mount, as citizens call for further access to justice and state accountability. Our article concludes by outlining some possible lessons from a broader comparative perspective.

Keywords: Japanese law, justice system reform, lawyers, legal profession, administrative law litigation, tax law litigation, patent law litigation, Australian law, comparative law, Asian law

JEL Classification: K10, K30