Friday, February 29, 2008

Nagoya High Court and 1994 China Airlines Crash

"NAGOYA--The high court here Thursday dismissed an appeal by two siblings who lost their parents in the fatal crash of a China Airlines Airbus A300-600R at Nagoya Airport in 1994 and had sought a ruling on the aircraft manufacturer's liability.

"They wanted the court to acknowledge that not only the airline but also France-based aircraft maker Airbus SAS was responsible for the disaster that killed 264 people.

"By upholding a December 2003 Nagoya District Court ruling, the court ordered the Taiwanese carrier to pay 98 million yen in compensation to the two plaintiffs, or 2 million yen more than the figure awarded in the earlier court decision.

"Presiding Judge Koji Okahisa blamed the pilot for maneuvering the aircraft "outrageously and recklessly."

"His maneuvers, to force the nose down in conflict with the autopilot system, put the airplane in abnormal "out of trim" conditions, causing it to stall and crash, the judge said.

"But Okahisa said the aircraft maker should not be held responsible on grounds it had revised its operation manual and took other measures to prevent danger.

""(The maker) cannot be said to be responsible for ensuring safety even when such reckless acts take place," he said, dismissing the suit's product liability claims.

"The plaintiffs, Kazuyo Hakamata, 51, and her brother Hiroshi Aozawa, 49, from Okazaki, Aichi Prefecture, had sought 142 million yen in damages from the airline and the manufacturer.

"It was the first appeals trial ruling on the accident in a series of lawsuits filed by more than 500 plaintiffs, who sought more than 30 billion yen in compensation, the largest ever in Japan.

"The ruling was also the first high court decision on whether an airline and a manufacturer should be jointly held responsible.

"The rest of the plaintiffs in the lawsuits either accepted the 2003 district court ruling or reached an out-of-court settlement with China Airlines, thus dropping their cases against Airbus SAS.

"Only the sister and brother had continued to question Airbus' responsibility.

"In 1996, the transport ministry's Aircraft and Railway Accidents Investigation Commission decided the April 26, 1994, crash resulted from a combination of 12 factors.

"These included improper maneuvering and characteristics peculiar to the aircraft.

"For example the aircraft's autopilot does not automatically turn off even if the pilot takes control manually."

By Asahi Shimbun (2/29/2008), Link to article (last visited 2/29/2008)

Thursday, February 28, 2008

Japan's New Law School System

"With its first crop of graduates just entering the legal profession, Japan's new law school system is in trouble. The schools, most of which opened their doors in 2004, are already struggling with the mismatch between the number of law students, which is unregulated, and the number of people who are allowed to pass the bar exam, which is set by the government at an artificially low number. As a result, the most recent pass rate was about 40 percent, a figure that will continue to drop as more graduates and repeat takers compete for a fixed number of slots — an unattractive situation for both existing and prospective students alike. More recently, the system has come under fire from a new quarter: Justice Minister (and former Minister of Education) Kunio Hatoyama and a number of regional bar associations.

"In an article in Shukan Asahi magazine last fall, Hatoyama attacked the law schools' very raison d'etre: increasing the number of lawyers who enter the legal profession (from a paltry 1,500 per year now to 3,000 by 2010). On Jan. 25, the Ministry of Justice indicated it was going to revisit this number, including the possibility of lowering the number of people who are allowed to pass the bar exam. If this happens it will be a betrayal by regulatory fiat of some of the fundamental assumptions and expectations of law students and educators across the country.

"Hatoyama's principal concern seems to be that more lawyers will mean more lawsuits and that Japan will become a "litigation society" like the United States. That the man who among other things is effectively the head of Japan's prosecutorial agency is calling to limit the number of people who can act as defense lawyers does not seem to have raised any eyebrows. Indeed, several regional bar associations have announced that they agree with him. In doing so, the lawyers raise valid issues about the very premise behind the law school system — that Japan even needs more lawyers — and the almost mindless process by which the current target of 3,000 new lawyers per year was arrived at (a comparison to the number of lawyers in other countries, with France being given particular weight — though without any real explanation as to why — as a comparative).

"That this criticism has originated from regional bar associations rather than those in Tokyo or Osaka is not surprising. Lawyers outside of such business centers are already complaining that there is not enough business for them even without the new competition from law school graduates. The average Japanese person apparently is not interested in litigation or whatever other services their friendly neighborhood lawyer has to offer. As noted in a resolution by the Kanazawa Bar Association issued last fall, the current trend shows litigation to be decreasing rather than increasing.

"Unfortunately, in addition to these very valid criticisms, at least some of the bar association comments veer off into self-interest and self-importance, both justified by an alternative form of logic that only applies to protected industries. The Kanazawa Bar Association, for example, argues that more lawyers will result in (gasp!) greater competition. Facing increased competition, goes the logic, lawyers will have to focus increasingly on the grubby task of making money, losing the leisure that is apparently necessary to engage in advocacy for the public good (which is of course one of the mandates of lawyers everywhere). As a result, the number of immoral lawyers will increase as they take on bad, even hopeless, cases just to earn a living. Essentially this is an extended version of Hatoyama's arguments about the horrors of a lawyer-laden Japan.

"That having more lawyers will decrease the number willing to take public-interest cases for free is difficult logic to follow. The concept that market forces might be an effective way of getting rid of "bad" lawyers does not seem to exist, but then economics is not a subject tested on the Japanese bar exam. Nor for that matter is legal ethics, which renders it a mystery how some members of the existing legal profession are able to portray themselves as somehow being morally superior to the general public simply because they have passed a very difficult standardized test.

"Both Hatoyama, the lawyers and the Justice Ministry simply take it as a given that the current legal profession is inherently better than the graduates of the new law schools, possibly because the current generation passed a much more difficult exam (pass rate 2-3 percent) which lacked any significant formal educational prerequisites (now one needs to be a law school graduate to sit for the bar). In doing so they conveniently ignore one of the other basic purposes of the law schools — to ensure that lawyers, judges and prosecutors receive a deeper and more intellectual education in the law. If that goal is realized, law school graduates should overall be better than prior generations. At the very least they will be better suited to dealing with the general public — and accustomed to competition.

"That the number of lawyers generated by the new law schools has become an issue already, when the impact so far is a relatively modest increase, reflects one of the core problems with the whole system — that it was apparently set up without a serious inquiry into what the average person actually needs out of Japan's legal system. Indeed, one fascinating aspect of the whole debate over the number of lawyers in Japan is that it misses a simple, basic fact — that the average Japanese person may not regard the legal system as a useful tool for solving problems. If you are arrested and prosecuted for a crime you will be found guilty over 99 percent of the time. If you get divorced and lose contact with your children, going to court probably won't change a thing. Lawsuits against the national government are shown to be losing propositions almost daily in the news. Small wonder then that Japanese people are averse to litigation, when it is so often proven to be futile.

"That the legal system does not function primarily for the benefit of the average person is probably a function of its history. Japan copied foreign laws and legal systems in the Meiji Era so that it would be taken seriously as a country internationally, not directly for the benefit of the Japanese people (except to the extent that being taken seriously was critical to preventing Japan from being colonized). Decades later, Japan's current Constitution and many other basic laws and institutions were imposed by the American Occupation in an authoritarian fashion. Law in Japan probably continues to exist first and foremost as something that is imposed from above as a means of preserving and enhancing authority, rather than being a democratically ratified set of rules intended to benefit individual citizens. If this is true, then Japanese people are not culturally averse to litigation, but simply rational in having limited expectations toward law and the courts in their country.

"No increase in the number of lawyers is likely to affect this basic structural dynamic, yet it is the one that nobody seems to want to talk about in the debate over the future of the law school system. Apparently it's much easier to bash lawyers, even if you are one yourself."

By Colin P. A. Jones (1/29/2008), The Japan Times, Link to article (last visited 2/28/2008)

Wednesday, February 27, 2008

Robert Mapplethorpe, Supreme Court, and Male Genitals

"The Supreme Court ruled Tuesday that photos of male genitals contained in a Robert Mapplethorpe photo book confiscated in 1999 are not obscene, overturning a customs house decision to prevent copies of the book from being brought into the country.

"Presiding Justice Kohei Nasu said in the ruling: "The photo book is edited from an artistic point of view. Judging the book as a whole, it can't be regarded as an obscene publication."

"The ruling handed down by the No. 3 Petty Bench of the top court also nullified a ruling by the Tokyo High Court, which had upheld the customs decision.

"The ruling marks a final defeat for the government in the case.

"The ruling was 4-1 among five justices. In 1999, the Supreme Court judged another photo book by the late U.S. photographer to be obscene.

"As Tuesday's ruling recognized the photo book, which contains five photos that were judged to be obscene in the 1999 ruling, as an artwork, it suggests that the nation's concept of obscenity has changed.

"Legal experts said it was the first time that the Supreme Court had overturned a lower court ruling over whether a work is obscene.

"The plaintiff was Takashi Asai, 52, president of a film distribution company in Tokyo.

"According to the ruling, Asai brought a copy of the 384-page photo book, titled "Mapplethorpe," from the United States to Narita Airport. The book contained 20 close-up photos of male genitals on 19 pages, as well as images of flowers and people.

"Customs authorities at the airport prohibited him from bringing the photo book into the country, saying it fell into the category of publications considered likely to damage morals, with import thus prohibited under the Customs Tariff Law.

"The majority of justices pointed out that Mapplethorpe won high acclaim as an art photographer. They said the photo book was edited to allow an overview of the whole of his photographic art, and that the controversial photos constituted a very small portion of the whole.

"They judged that, seeing it as a whole, it was difficult to regard the book as intended to arouse sexual desire. Commenting on the 1999 ruling, they said that the two judgments do not contradict as the content of the two photo books and the times of the customs house decisions were different."

By Yomiuri (2/20/2008), The Yomiuri Shimbun, Link to article (last visited 2/27/2008)

Tuesday, February 26, 2008

Lay Judge Preparations

"The Tokyo District Court plans to begin trials in April of a daily court system aimed at concluding in only a few days trials of all kinds of serious crimes, in preparation for the launch next year of the lay judge system, judicial sources said Thursday.

"The district court will propose the plan in a March 3 meeting with the Tokyo District Public Prosecutor's Office and the three bar associations in Tokyo, the sources said.

"Criminal trials take a relatively long time to come to a conclusion partly because court sessions are held at long intervals.

"The Tokyo District Court plans to apply the daily court system to actual trials, not mock tribunals, in a bid to pinpoint the problems in introducing the lay judge system and to find solutions, the sources said.

"Under the lay judge system, professional judges and members of the public, serving as lay judges, will jointly try serious crimes, including murder, robbery resulting in death, injuries leading to death, and arson, for which the maximum punishment is death or life imprisonment.

"Most of these trials are expected to conclude in three to five days under the new system.

"(...)

"In a planned reform of the judicial system for criminal trials, the lay judge system is scheduled to debut in May 2009, aiming at making ordinary citizens feel closer to the criminal trial process and at improving public trust in the judiciary.

"Under the 2004 judicial reform law, professional judges and citizen judges, who will be chosen at random from lists of eligible voters in a general election for the House of Representatives, regardless of their views, faith or abilities, will oversee criminal trials. The lay judges will have equal authority in deciding on the verdicts and punishments.

"Basically, three professional judges plus six lay judges will decide by a majority vote whether a defendant is guilty, and will hand down a sentence in a conviction. At least one professional judge and one lay judge must have voted on the majority side."

By Kyodo News (2/8/2008), The Japan Times Online, Link to article (last visited 2/26/2008)

Judicial Reform

"The long-overdue reform of the nation's judicial system that started after the turn of the century is aimed at improving public access to justice. One key objective is to ensure that people, no matter where they live in this country, can easily consult lawyers when they run into legal problems concerning their lives and jobs.

"One specific target is doubling the population of the legal community to 50,000 by around 2018, mostly through an increase in the number of lawyers.

"To achieve this target, the government has created a new law school system and changed the way bar examinations are conducted. The number of successful applications grew steadily to 2,100 last year from about 500. The government plans to increase the figure further to 3,000 in 2010.

"The reform, however, is now facing growing resistance. Some local bar associations have begun to voice opposition to the planned increase in lawyers, saying the step would lower quality within the profession. They also point out that jobs are becoming scarcer for rookie lawyers.

"Makoto Miyazaki, who was elected president of the Japan Federation of Bar Associations (JFBA) early this month, has pledged to urge the government to review the expansion plan.

"Within the Justice Ministry, which supervises bar examinations, Justice Minister Kunio Hatoyama has said 3,000 would be too many. The ministry is considering a review of the plan.

"Indeed, a growing number of students at the Legal Training and Research Institute have failed the organization's graduation examinations after passing the bar exams. But this may mean that the institute is now performing more of a screening function to reject ill-qualified legal trainees as the number of successful bar exam applicants has increased.

"The quality standards lawyers are required to meet can change with the times. The claim that young lawyers are facing a job shortage cannot be accepted at face value. The average annual income of lawyers is 16 million yen, according to a report on the profession published by the JFBA.

"A greater number of lawyers inevitably make higher-paying cases hard to come by. Opponents appear to be campaigning against the proposed increase in attorneys at law to prevent such a rise in competition.

"That's nothing but an egregiously self-serving attempt to block an important reform.

"The question that must be asked here is whether the serious problem of areas without enough lawyers has been fixed. Each district under the jurisdiction of a court needs at least two attorneys because both the plaintiff and the defendant need legal counsel. Of the 203 districts under the jurisdiction of a local branch of a district court, however, three have no practicing lawyer at all, and 21 have only one. (...)"

By Editorial (2/19/2008), Asahi Shimbun, Link to article (last visited 2/26/2008)