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Circumstances That Would Prejudice Impartiality: The Meaning of Fairness in Japanese Jurisprudence

42 Pages Posted: 13 Dec 2012 Last revised: 14 Aug 2013

Mark Levin

University of Hawaii at Manoa - William S. Richardson School of Law

Date Written: May 14, 2013

Abstract

This article considers how Japanese judges have articulated the meaning of fairness in judicial decisions. The provisions in Japan’s Code of Civil Procedure, which provide for disqualification of judges and for direct party challenges to judges’ involvement in cases, explicitly require judges to weigh the fairness of the justice process in the particular circumstances of the cases before them. These cases provide a unique window for understanding the meaning of fairness, or what U.S. scholars might call due process, in Japanese jurisprudence.

In fact, the meaning of fairness has earned little explanation from Japan’s judges in their formal jurisprudential voice. Research uncovered only ten published case decisions under the current Constitution and Code of Civil Procedure that address the standards here. In all but one, the results were denials of the petitions and refusals to remove the judge. Early decisions, in particular, demonstrated a narrow acknowledgement of the potential for bias and were resolved via a formalistic reasoning that paid little regard for public perceptions.

While the record of judicial disqualification and challenge cases shows a history of harsh determinations in the early post-war years in Japan, more recent decisions emerging in the context of the massive changes to Japan’s justice system since 2001 suggest that judicial system reform has had a modest, but positive impact with regards to the quality of procedural justice available to civil litigants in Japan. In particular, an April 2011 decision by the Japanese Supreme Court’s Second Petty Bench, which clearly acknowledges a requirement of due process in civil procedure, offers optimism for further improvement in years ahead.

Keywords: Japan, Japanese law, Constitution of Japan, Japanese Code of Civil Procedure, Judicial Disqualification, Judicial Challenge, Judicial Ethics, Procedural Justice, Supreme Court of Japan, Judges, Courts, Civil Due Process, Comparative Law, Comparative Constitutional Law

Suggested Citation

Levin, Mark, Circumstances That Would Prejudice Impartiality: The Meaning of Fairness in Japanese Jurisprudence (May 14, 2013). Hastings International and Comparative Law Review, Vol. 36, No. 2, pp. 475-516 (Summer 2013). Available at SSRN: https://ssrn.com/abstract=2188064

Mark Levin (Contact Author)

University of Hawaii at Manoa - William S. Richardson School of Law ( email )

2515 Dole Street
Honolulu, HI 96822-2350
United States

HOME PAGE: http://www.law.hawaii.edu/levin

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