Sunday, December 5, 2010

"Regulations on manga

"The Tokyo metropolitan government submitted a bill to revise an ordinance to strengthen regulations on depictions of sex specifically in manga and anime.

"It modified a bill rejected by the assembly in June and redefined subjects of regulation as those that "unjustly praise and exaggerate unlawful sexual acts and sex between close family members."

"Once again, manga artists, lawyers and organizations such as the Japan P.E.N. Club strongly oppose the proposal, saying it gives the administration too much leeway to arbitrarily exercise control at its discretion and will shrink back creative activities.

"An existing ordinance already stipulates that "books and magazines that stimulate sexual feelings and could hamper sound growth must not be sold or shown to 'seishonen' (young adults and children)."

"The governor is authorized to admonish publishers and others to take necessary measures and designate "harmful publications." Those that fall under the category of "obscene materials" are subject to control under criminal law. Manga is by no means uncontrolled.

"But the Tokyo government says the existing ordinance is inadequate. It is true that some manga makes us cringe, and many people think such publications must be kept out of the reach of children.

"However, the propriety of making the rules for that and leaving their implementation to the administration are problems that must be considered separately.

"The bill has to do with "freedom of expression," which is considered one of the most important basic human rights. First, the reasonable thing is to respect voluntary measures by concerned parties.

"Publishers and bookstores are establishing committees with the participation of outside experts and imposing voluntary regulations, such as marking materials considered inappropriate for young people, keeping them on special shelves in bookstores and putting them in bags or sealing them with tape.

"We urge them to listen to diversified opinions and continue to make efforts at exercising self-restraint. Currently, the Japanese term seishonen applies to 7-year-olds as well as 17-year-olds. This is unreasonable.

"Also in order to resolve this problem, we want publishers and bookstores to consider the introduction of labeling that takes into account the readers' age.

"While there may be creative expressions that split opinions, there are manga that we want young people to read.

"In "Kaze to Ki no Uta" (The song of wind and trees), Keiko Takemiya depicted sexual love between boys and sexual relations between father and son. While publishers feared complaints, Takemiya wrote it to get across to girls the problem of sex. The late psychologist Hayao Kawai, who served as commissioner for cultural affairs, lauded the manga, saying, "It fully expressed the internal world of adolescent girls."

"The manga is still being read widely. However, if the proposed revision is taken at face value, "Kaze to Ki no Uta" would be subject to regulation without question and would not reach teenage readers.

"In the past, a manga that Osamu Tezuka (1928-1989), who was also a medical doctor, wrote for sex education was treated as "harmful material."

"The Tokyo metropolitan government says it would not regulate such works. But we fear such decisions may be made arbitrarily by the administration. Tokyo also says the proposed regulation does not apply to creating manga. However, manga is also an industry, and pressure on distribution could easily have an impact on expression.

"In order not to restrict the freedom of expression of future Tezukas and Takemiyas and keep opportunities open for children to be moved by excellent, thought-provoking manga, we must be cautious about allowing public power to interfere."

By Asahi Shimbun (Editorial, 12/3/2010), Link to article (last visited 12/5/2010)

Wednesday, November 17, 2010

First death sentence in lay judge trial

"A man charged with brutally murdering two men was sentenced to death in a ruling at the Yokohama District Court on Nov. 16, marking the first time for the ultimate penalty to be handed down in a lay judge trial.

"The 32-year-old defendant, Hiroyuki Ikeda, was sentenced to death for murdering a 28-year-old mah-jongg parlor manager and another 36-year-old man in Chiba Prefecture in 2009.

"In handing down the ruling, Presiding Judge Yoshifumi Asayama said the death penalty could not be avoided.

""The cruelty of his actions was inhuman, and the ultimate penalty cannot be avoided even if circumstances are taken into consideration to the maximum possible extent," the judge said.

"Ikeda admitted to a charge of murder and robbery, which carries a sentence of death or life imprisonment, and public prosecutors demanded the death penalty. It was the second time in a citizen judge trial for the death penalty to be sought. Lawyers for Ikeda requested avoidance of the death penalty, and the focus of the case was on the sentence.

"During the trial, Ikeda said, "Whatever the ruling is, I want to serve the sentence without resenting anyone." After the ruling, however, the judge made the rare move of recommending that the defense file an appeal due to the seriousness of the decision.

"The ruling adopted standards for handing down the death penalty that included the level of brutality of the murder method, the motive and the victim's feelings.

"Commenting on the fact that Ikeda had ignored the pleas of the two victims for their lives and used an electric saw and knife to cut their throats, the ruling said, "It was an extremely grotesque crime and among the conceivable methods of killing it was exceedingly brutal and the suffering of the victims is unimaginable." The ruling added that Ikeda was ruthless in refusing the final wishes of the victims to call their families.

"The ruling said that the motive was sparked by a request from Takero Kondo, the former manager of the mah-jongg parlor who had gotten into an argument with the two victims over management of the parlor. However, the court added that Ikeda had wanted to show off his power and obtain access to illegal drugs that Kondo allegedly ordered the smuggling of, and criticized his actions as "selfish and malicious." Kondo, 26, is on an international wanted list for alleged crimes including murder and robbery.

"The court said the shock and sadness felt by the victims' families was enormous and concluded that there was no option but to hand down the death penalty when considering the brutality, maliciousness, calculated nature and result of the crime.

"The ruling came 1 1/2 years after the launch of the lay judge system, under which citizen judges have a say in sentences.

"In a news conference after the ruling one of the six lay judges, a man in his 50s, said he was troubled by the case and wept several times in the courtroom.

""Even now I cry when I remember it," he said, adding that he fretted each day over whether the defendant should be sentenced to life imprisonment or death.

"Asked about his impression of Ikeda in court, he said, "In the trial, it looked like he was saying, 'I've done something bad, kill me.' But when we saw him listening to the opinions of the bereaved families, we could see his eyes going red with tears, and we cried as well."

"However, the lay judge said he tried to focus on the sentence as prescribed by law rather than on the defendant.

""Looking at the defendant alone in court you would cry and a proper trial couldn't go ahead," he said."

By Mainichi Shimbun (11/16/2010), Link to article (last visited 11/17/2010)

Thursday, November 11, 2010

Children's Right to Know Their Origins

"In the four years since Jikei Hospital in Kumamoto started operating the nation's first "baby hatch," where parents can anonymously leave babies they feel they cannot care for, 57 babies and infants have been dropped off at the hospital.

"In the same period, the hospital has also given free counselling to a number of people about such matters as pregnancy and child-rearing. The hospital continues to receive requests for such consultations.

"The role of the hospital highlights the problems facing society as a whole in aiding people who find it impossible to raise newborns.

"In responding to a buzzer at the incubator-like 24-hour baby hatch, hospital staffers often find newborns, some of them still with umbilical cords still attached.

"Of the 32 boys and 25 girls who were left in the hatch as of spring this year, 48, or 84 percent, were newborns. Six were infants under 1 year old, and three were over 1.

"Shortly after the hospital set up the hatch, which is named Konotori-no-Yurikago (stork's cradle), it received a 3-year-old boy.

""As we expected, many of the babies left were newborns," said Yukiko Tajiri, the hospital's chief nurse. "We've had [mothers] come to the hospital shortly after giving birth to babies at a home, which is dangerous."

"According to the Kumamoto municipal government, which monitors use of the hatch, the parents of 34 babies were confirmed to be from outside Kumamoto Prefecture.

"Of them, 15 were from the Kanto region, and five each were from the Kinki and Chubu regions.

""We saw that there are people in great distress throughout the country," said Taiji Hasuda, director of the hospital. "These babies might have been abused if this hospital hadn't been here."

"Sumio Ishihara, an official of the municipal government's Children's Future Bureau, said some still believe the baby hatch system encourages parents to abandon their children.

""It's obvious that a society that doesn't need such a system would be better," he said. "There are people who come here by train or car from as far as the Kanto region to drop off babies, and there are young people who aren't informed about contraception. [The baby hatch] sheds light on realities of society and flaws in the current system."

"The hospital changed part of the system, deleting a sentence on its Web site that said, "Parents can anonymously drop off babies." It also seeks to contact parents and on its Web page advises would-be users of the baby hatch to use an intercom at the hatch to ask for advice.

"Last fiscal year, the hospital was able to contact about 90 percent of parents who left infants in the baby hatch.

"In seven cases, parents changed their minds when they were dropping the baby off or after the hospital located them.

"Child welfare centers take care of infants left in the baby hatch until they can be temporarily placed in a child consultation office or in foster homes.

"The hospital says it tries to have such infants permanently placed in homes under a special adoption system that legally dissolves infants' relationship with their biological parents and makes them children of the adoptive parents.

"However, problems remain about children's right to know their origins.

""Anonymity is convenient for those who give birth to a baby, but this leaves a serious problem for children as they can't get any information about their origins," said Nobuko Kuroda, an official of Kumamoto prefectural government's Chuo child consultation center.

""The reasons why parents drop off infants include being unmarried, too young, poor or having a child as a result of an extramarital affair," said Prof. Reiho Kashiwame of Shukutoku University, who chairs a committee of the prefectural government tasked with reviewing the baby hatch system. "These problems reflect the society itself. [For example,] we discussed men who don't take responsibility.

""[The baby hatch] shows the child welfare system, as well as the maternal and child health system, don't adequately support people who have unintended pregnancies," she said. "The worries of such parents can lead to child-abuse deaths. The government needs to prepare a shelter for mothers and children that gives advice and can cope with crises.""

By Noriko Sakakibara (Yomiuri Shimbun, 11/7/2010), Link to article (last visited 11/11/2010)

Wednesday, October 20, 2010

"Fight to keep legal trainees' salaries

"Efforts to continue the payment of monthly salaries to legal trainees have gained momentum ahead of the scheduled change to a system of loans on Nov. 1.

"Those who pass the bar exam train for one year at the Judicial Research and Training Institute before they decide whether to become prosecutors, judges or lawyers. During that year, trainees are paid about 200,000 yen monthly under the current system.

"This will change to a system of loans from Nov. 1, under which trainees can borrow from 180,000 yen to 280,000 yen monthly with no interest. The loans can be paid back in installments over a maximum of 10 years, with a five-year grace period.

"With only about 10 days remaining before the change, supporters of the salary system are trying to maintain it through a special procedure that would revise the Court Law without deliberations in the Diet.

"Others, however, strongly criticize the move to chip away at something that has already been decided, saying preservation of the salary system would run counter to efforts to reform the nation's judicial system.

""We've had considerable understanding from all political parties, except the Liberal Democratic Party," Japan Federation of Bar Associations President Kenji Utsunomiya told a regular press conference last Wednesday.

"The federation has been asking Diet members to revise the law to maintain the salary system for legal trainees, and postpone the enactment of the new system for three years.

""The loan system was created based on a target of increasing the number of successful bar exam applicants to about 3,000 a year," said Yoshiko Aibara, a deputy secretary general of the federation. "However, that target has not been reached and the number of people who want to join the legal profession has been decreasing.

""We need to reexamine all the reforms of the judicial system," Aibara said.

"Over the last several years, the government has provided nearly 10 billion yen for about 2,000 legal trainees. It was decided in 2004 to shift to the loan system, as an increase in legal professionals would increase the government's fiscal burden. The Court Law was revised to permit the enforcement of the loan system from Nov. 1.

"However, the legal affairs division of the Democratic Party of Japan's Policy Research Committee decided Sept. 13 to support the continuation of the salary system.

"New Komeito also is leaning toward agreeing to the bar federation's plan to delay enforcement for three years.

"The DPJ plans to submit a bill in the form of a proposal by the chairman of the the Judicial Affairs Committee in the House of Representatives or the House of Councillors.

"This is a kind of a lawmaker-sponsored bill that is submitted to the Diet after all parliamentary groups have agreed to the proposal in prior talks. Deliberations on the bill are essentially skipped, and it is approved unanimously.

"The DPJ expects this method to work, but it needs the LDP's cooperation to achieve unanimous approval.

"The LDP is expected to decide its position on the matter at a meeting of the party's Judicial Affairs Division scheduled for Wednesday. Utsunomiya attended the division's meeting Sept. 5 and strongly urged the salary system be retained.

""Because the state pays the salary, lawyers feel an obligation to serve the public," Utsunomiya said.

"Division Director Katsuei Hirasawa was skeptical, saying: "It's impossible to get the public to understand a system of paying the same salary to everyone, even to rich people." However, an increasing number of LDP Diet members support the federation's position, according to LDP sources.

"But there is also strong opposition to the move. According to the Supreme Court, 1,648 legal trainees, or 79 percent, of the 2,074 who passed the new version of the bar examination this year actually applied for loans.

""As quite a few trainees are wealthy, is it all right to pay them salaries using tax money without sufficient debate on continuing the system?" a senior Supreme Court official said.

""Some people are several million yen in debt due to such expenses as law school tuition," a 27-year-old legal trainee said.

""If fiscal conditions have to be taken into consideration, why doesn't the government exempt people who participate in public service from repaying the loans, such as working as lawyers in depopulated areas?" he proposed.

"Some in the judicial profession see continuing the salary system will dilute the judicial reforms aimed at increasing the number of those in the field.

""We have to try to increase the number of aspiring judicial professionals and successful applicants, in keeping with the trend of reform," said Kaoru Kamata, 62, vice head of the Japan Association of Law Schools.

"Kamata, who is to become president of Waseda University in early November, said, "If the salary system is maintained, the government will have to decrease the number of successful applicants due to budget considerations."

""Rather than maintaining the salary system, which will slow down the expansion of the judicial profession, they first should think about ways to increase the number of lawyers working at companies and local governments," said lawyer Hideaki Kubori, 66, a former president of the Daini Tokyo Bar Association and an expert on corporate legal affairs."

By Yomiuri Shimbun (10/20/2010), Link to article (last visited 10/20/2010)

Tuesday, September 28, 2010

"A look at how politics influenced the prosecutors

"The decision by Japanese prosecutors to release the captain of a Chinese trawler appears to have been the result of strong political influence.

"While government officials at all levels are denying that political pressure was applied, government sources did say that Prime Minister Naoto Kan appeared increasingly agitated over the prolonged row with China over the arrest of the captain of the trawler that collided with two Japan Coast Guard vessels in waters near the Senkaku Islands.

"Kan was visibly frustrated even before he left Wednesday to attend a U.N. General Assembly session. Central government officials also whispered rumors that Kan remained agitated during his stay in New York before prosecutors decided to release the captain on Friday.

"Officials in the Kan administration were becoming increasingly concerned that bilateral relations could be hurt to an extent that it would take years to repair.

"Many central government bureaucrats said they believe that Kan hurried along the decision to release the captain.

"Kan himself stressed in a news conference in New York that no political interference had been involved in the prosecutors' decision.

""(The release) was the result of prosecutors considering the nature of the incident in a comprehensive manner and making a judgment in an orderly fashion based on domestic law," Kan said Friday evening in New York.

"He also called on China to observe more restraint.

""The two nations are important neighbors that have a responsibility to the international community," Kan told reporters. "In order to deepen a mutually beneficial relationship based on common strategic interests, both Japan and China must make efforts in a calm manner."

"However, in Tokyo, government bureaucrats said the government was irresponsible for saying the decision was made entirely by prosecutors.

""It's a farce to say prosecutors made the decision," a senior ministry official said. "(The government) is irresponsible."

"Some bureaucrats predicted events would turn out as they did in the wake of the arrest Tuesday of a prosecutor at the Osaka District Public Prosecutors Office on suspicion of altering evidence.

"After the arrest, a high-ranking Foreign Ministry official said, "It will absolutely have an effect on the Senkaku issue. The officials in the Supreme Public Prosecutors Office are not idiots."

"The official predicted that prosecutors would bow to political pressure and release the captain.

"Even after the captain's release, China has not backed down from its confrontational stance.

"Japanese officials were seeking a meeting in New York for Kan and Chinese Premier Wen Jiabao after the release, but that never materialized.

"Moreover, the Chinese Foreign Ministry demanded an apology and compensation for the detention of the captain.

"On Saturday, the Foreign Ministry released a statement that said, "China's request has absolutely no basis and cannot be accepted."

"In Nara, Katsuya Okada, the secretary-general of the ruling Democratic Party of Japan, said, "It is a completely unconvincing request. China should respond in a more restrained manner."

"A high-ranking Foreign Ministry official predicted that China will become increasingly arrogant.

"When asked about how to deal with such an emerging China, the official said, "There is nothing we can do. This is a huge trend that will continue for 20 years."

"Although the Kan administration initially gave the go-ahead to arrest the captain, it eventually hurried to resolve the issue even as it prepared for the criticism that such a move would bring.

"They were forced to make that course change because the unexpected pace at which China escalated its confrontational stance led government officials to begin thinking about the worst-case scenario.

"After calling the Japanese ambassador to the Chinese Foreign Ministry numerous times, even late at night, Beijing cut off all ministerial-level contact. Exports of rare earth metals from China also came to a halt.

"After four Japanese construction company employees were detained in China, a senior Foreign Ministry official said, "China has begun moving as the options available to it have decreased."

"The official also warned that Japanese in China should be more careful because "it is a nation like North Korea."

"Another Foreign Ministry official said other measures that Beijing could have taken include "an informal product boycott against Japanese companies" and "the carrying out of sentences, including the death penalty, against Japanese arrested in China in connection with prostitution and drugs."

"A Defense Ministry source said, "Chinese naval ships could be dispatched to the waters near the Senkaku Islands."

"In 1993 after France approved the sale of fighter jets to Taiwan, China, in a retaliatory measure, closed the French Consulate General in Guangzhou.

"Considering the circumstances, Beijing could have taken similar measures against Japan in the trawler incident, officials said.

"A high-ranking official in the prime minister's office said that if the captain had been indicted, China would likely have recalled its ambassador and might also have severed diplomatic ties.

"When asked about criticism of being weak-kneed, the official said, "What would you do? Would you go to war? In the past, this might have ended in war."

"The decision to release the captain was also a difficult one for prosecutors.

"After the decision was made, sources in the Supreme Public Prosecutors Office indicated just how unusual the decision was.

"One high-ranking prosecutor said, "There was enough evidence to indict, but we considered the effects on the Japan-China relationship. It just went beyond our hands."

"Another high-ranking prosecutor warned that prosecutors could not be held responsible if a similar incident occurred in the future.

"On Friday before the decision to release was made in Naha, Okinawa Prefecture, a meeting was held in Tokyo between officials of the Supreme Public Prosecutors Office, Fukuoka High Public Prosecutors Office and Naha District Public Prosecutors Office.

"Naha prosecutors asked that an indictment be allowed, but objections were raised by prosecutors at higher levels.

"The decision to release the captain was made at the meeting.

"A high-ranking Justice Ministry official explained why the decision to release the captain was made before the Wednesday detention deadline.

""If the decision was made after the prime minister returned to Japan, doubts would surely have been raised about political interference in the decision," the official said.

"Prosecutors also were aware of the pressure being applied by China.

"One senior prosecutor said, "The detention of the four Japanese had a psychological effect."

"Meanwhile, Tadamori Oshima, vice president of the opposition Liberal Democratic Party, said the party would ask that Toru Suzuki, the deputy prosecutor at the Naha District Public Prosecutors Office who made the announcement to release the captain, be called to testify in the Diet to explain the process behind the decision.

"An extraordinary Diet session will be convened from Friday.

"Oshima said about the comment by Chief Cabinet Secretary Yoshito Sengoku accepting the prosecutors' decision, "We have to think that is evidence of interference by politicians in the judicial sector.""

By Asahi Shimbun (9/27/2010), Link to article (last visited 9/28/2010)

Friday, September 10, 2010

National Legal Examination Results 2010

"This year's bar exam pass rate under Japan's new system has hit a record low, proving it is difficult for applicants who did not major in law at universities to enter the profession.

"The new bar exam system is aimed at opening the door of the legal profession to people who don't have undergraduate law degrees, such as those with other professional careers or with undergraduate degrees other than law. Since the new system was introduced in 2006, law schools have been striving to help students who don't have undergraduate law degrees pass the annual exam.

"Despite such efforts, however, this year's exam -- the fifth under the new system -- was still tough, with the pass rate of applicants who don't have undergraduate law degrees being slightly more than 10 percent.

""Knowing the current pass rate, no working adult would quit their job to become legal professionals," says Keiichiro Murayama, a graduate of Yokohama National University's Law School. The 32-year-old passed this year's bar exam after a seven-year career as a newspaper writer and graduating from the law school. "I wouldn't have taken the risk if I had to wait another year."

"Azuna Ikeda, 29, a graduate of Tokyo Metropolitan University's Law School, is another one who passed this year. "Before passing the exam, I was telling a friend of mine what would happen in the future if I failed it," says Ikeda, who used to work for an IT-related company for three years before entering the law school.

"Concerning the predicted rise in demand for legal professionals -- court judges, prosecutors and lawyers -- in business, medical and other professional fields, the government had taken concrete steps to increase the number of those in the profession as part of its reforms of the country's judicial system. Still, growth in the number of those who pass the bar exam has been sluggish and there are only a few legal professionals who venture into other fields.

"In July, the Ministry of Justice and the Ministry of Education, Culture, Sports, Science and Technology referred to the entire system to nurture the legal profession as "falling into a vicious cycle," and criticized some law schools -- a gateway to the profession -- for failing to recruit high quality teachers. The government plans to get the system back on its feet, with improving education at law schools at the core, on the grounds that it is possible to secure 3,000 people to pass the exam per year if high quality education is provided."

By Mainichi Shimbun (9/10/2010), Link to article (last visited 9/10/2010)

Saturday, August 21, 2010

Ten Years of Adult Guardianship Law Reform

"Ten years ago, the adult guardianship system was established in Japan to ensure support for elderly and disabled persons who have diminished mental capacities and protect them from fraud and other foul play.

"Under this system, a guardian holds the power of attorney to manage the assets of the incapacitated ward, choose welfare service programs for the ward and handle legal matters such as signing a contract to commit the ward to an institution. Petitions for the courts to appoint guardians are now being filed in increasing numbers every year. More than 27,000 petitions were filed last year. But only about 60 percent of the appointed guardians are the families and relatives of the parties being cared for. Clearly, the current trend is to appoint as guardians lawyers, judicial scriveners, welfare workers and other specialists.

"By appointing such third-party professionals, rather than families and relatives who may be lax in their fiduciary duties, trouble can be avoided and the rights of the incapacitated elderly or disabled ward be protected. Some families and relatives are unhappy about this, but we believe it is the most reasonable way to ensure the system is enforced as the law intends.

"But the adult guardianship system is no protection for incapacitated people who have no kin to turn to, and whose assets are not worth hiring a professional to manage them for a monthly fee of several tens of thousands of yen. To help such people, several municipalities, including the city of Osaka and Tokyo's Setagaya and Shinagawa wards, have come up with the concept of "citizen guardians." These people live in the same community as the incapacitated person needing help, and they use their community network to provide free service.

"By this autumn, Setagaya Ward will have 62 such active and prospective guardians. Citizen guardians are appointed after 50 hours of training. Their duties include visiting their charges and checking their health, managing their household finances and handling pertinent legal contracts by proxy.

"To protect guardians from taking on burdens beyond their capacity or becoming involved in trouble, there are lawyers, doctors, accountants and other specialists providing support, and the overall working of the system is supervised by social welfare councils.

"But outside such a forward-thinking community as Setagaya Ward, most municipalities are reluctant to act. Their tight finances don't allow new undertakings, some say. Others say there is little demand for such guardians, and argue that professionals, rather than amateurs, should be tapped in this sort of situation.

"We certainly believe each community should do as it sees fit. However, there is no doubt that petitions for guardianship appointments will keep increasing. And once a guardian has been appointed, in most cases his or her duties will continue until the ward dies. The number of people requiring guardians will snowball. In fact, there are already 130,000 people around the nation receiving support under the adult guardianship system. Each region must build a lasting, reliable system.

"Effective use of available guardians is important. We suggest experts be entrusted with difficult cases, such as when the ward owns substantial assets or there is a family feud, while citizen guardians may suffice in simpler cases. And the system should be flexible, making it possible to change guardians when a person's circumstances change.

"The loss of strong community ties is felt ever more acutely these days. This is all the more reason for society to pull together to develop new kinds of relationships. We believe the citizen guardianship system is a step in the right direction."

By Asahi Shimbun (Editorial, 8/20/2010), Link to article (last visited 8/21/2010)

Tuesday, August 17, 2010

New Lawyers and Job Market in Japan

"About 40 percent of legal trainees preparing to enter the job market as lawyers later this year have yet to receive offers of employment, according to a survey by the Japan Federation of Bar Associations.

"One of the main reasons for this is a rapid increase in the number of people in the legal profession, meaning more competition for the few spots available at law firms.

"If the situation continues, many legal professionals will have little option but to open their own practices and try to establish themselves as lawyers in an unfavorable climate.

"Another reason for the situation is the limited areas in which lawyers are practicing.

""I've been rejected by over 70 law firms," said a 34-year-old would-be lawyer who passed the bar last year.

"He was hoping to begin his career as an "isoben" lawyer at a firm in the Tokyo metropolitan area after finishing his legal training at the end of this year. Isoben lawyers help their senior colleagues deal with client requests while working on fixed salaries.

"The man intended to cut his teeth at a law firm, find his own clients and forge out on his own. If things had gone according to plan, he would have had no need to worry about his future.

""I've even begun considering just renting space in a law office," he said. In this approach--known as nokiben--lawyers are responsible for finding their own clients and generating their own income.

"The man said he had become increasingly anxious over repaying the 7 million yen he borrowed for law school.

"This man is just one of 2,000 would-be lawyers surveyed last year by the federation. Among the nearly 1,200 who responded, 43 percent said they had not received job offers. This is up from the 30 percent who had complained of the problem in the previous annual survey.

"Fifty-eight of the legal professionals entering the job market last year were unable to find jobs as isoben or even as nokiben, and instead were forced to open their own practices.

"The federation predicts people entering the legal profession will increasingly need to open and run their own businesses, as the glut of lawyers is making it more difficult for legal trainees to get their feet in the door.

"Since 2000, the government has been pushing judicial reform to increase the number of legal professionals in an attempt to improve legal services for the general population.

"As a result, the number of people who pass national bar exams doubled from 1,000 to more than 2,000 annually. As of the end of last fiscal year, there were 28,789 registered lawyers. A decade ago, that number was 17,126.

"Riichiro Takahashi, vice president of the federation, said, "If we start to see a lot of people opening up their own firms without having trained under more experienced attorneys, we could see a lot of problems in terms of protecting citizens' rights."

"With this unprecedented situation, the federation is urging bar associations to explore new areas of need for the profession. In April, the federation opened its Himawari Chusho Kigyo Center, a center for small and midsize companies that do not have lawyers on retainer. Managers with legal concerns can call the center to be transferred to their local bar association.

""We want businesses to know there are uses for lawyers outside of court," one federation official said.

"On July 20, the federation made an urgent request to the Japan Business Federation (Nippon Keidanren) and other major economic organizations, asking them to make sure their members had a full understanding of services available from corporate lawyers.

"There were more than 400 lawyers directly employed by the corporate world as of the end of last year, but this trend has slowed since Lehman Brothers went bust in 2008.

"As of March, there were 200 lawyers employed as full-time staff at the offices of the Japan Legal Support Center, which provides legal services mainly in rural areas.

"A Japan External Trade Organization official who helps companies in the Shikoku region do business overseas says lawyers are spread unevenly throughout the country.

""There is demand here for lawyers with expertise in international business and other affairs, but there are few nearby," according to the official.

"Nippon Keidanren's Business Infrastructure Bureau says lawyers tend to be concentrated in big cities and there are many regions that have a shortage of lawyers. The bureau also says further measures need to be taken to expand the demand for lawyers by, for example, expanding the network of Legal Support Centers."

By Yomiuri Shimbun (8/14/2010), Link to article (last visited 8/17/2010)

Thursday, August 12, 2010

Organ Transplantation Law and Brain Death

"Under the revised law on organ transplantation that went into full effect on July 17, organs of people declared brain-dead may be donated with the consent of family members even if the intent of the patient is unknown.

"On Tuesday, organs were contributed under the provisions of this new legislation for the first time.

"The donor, a man in his 20s, was confirmed brain-dead on Monday due to injuries suffered in a traffic accident. His heart, lungs, liver and other organs were harvested for transplantation into patients who had been waiting for such donations.

"Under the previous law, organ donations required the consent of the donor in writing. With the amended version, the final decision is left to the family unless the brain-dead person had specifically expressed opposition to the use of his or her organs.

"According to the Japan Organ Transplant Network, Japan's only organization for coordinating organ transplantation, the man expressed the desire to donate his organs while watching a television program on that subject with his family. The family decided to have his organs donated after weighing the wishes he voiced at that time.

"This is welcome news for patients waiting for organ donations. The family, however, must have had an extremely difficult time reaching the decision in the absence of the man's written consent.

"We must respect the sentiment of these family members and firmly support their decision.

"At the same time, we hope this precious experience can also be used effectively to realize more medical transplantations.

"In this particular case, the fact that family members discussed organ transplantation apparently made it easier to hypothesize what choice the man would have made. There is no doubt, however, that cases devoid of such clues will emerge in the future.

"As a reference for such instances, the Ministry of Health, Labor and Welfare must thoroughly examine and verify this case, and disclose its findings to the greatest degree possible.

"Under the revised transplant law, physicians are required to inform family members of the organ donation option in the event that a loved one is declared brain-dead.

"In this case, how and when was the family informed of this alternative? What process did they go through to reach the decision to donate the man's organs?

"To establish a truly reliable medical transplantation system, it is crucial to uphold full transparency and not bottle up the process behind closed doors. While respecting the family's wishes for solitude, as well as the right for privacy, every reasonable effort must be made to clarify what happened in this case.

"Prompted by this example, the general public must have become more aware of the heavy responsibilities of family members.

"The issues include whether to donate organs and what choices best reflect the wishes of potential donors. There will be cases when such decisions must be rendered amid intense sorrow, even if based solely on conjecture.

"Firm knowledge of what the person in question desired will ease the psychological burden of family members. Toward that end, daily conversations about such subjects, as well as recording one's desires in writing whenever possible, may be very wise approaches.

"The upcoming Bon holiday break is a period when families, including grandparents in many cases, gather for vacations or other activities. This could be an excellent opportunity to discuss the recent transplant case, and consider the preferred course of action if such a situation occurs within one's own family unit."

Asahi Shimbun (Editorial, 8/11/2010), Link to article (last visited 8/12/2010)

Saturday, July 31, 2010

"Death Penalty Debate

"Two executions were carried out Wednesday, the first under the government led by the Democratic Party of Japan.

"Justice Minister Keiko Chiba, who ordered the executions and witnessed the hangings, said, "Once again, I strongly felt the need for a fundamental debate on capital punishment."

"She expressed her intention to set up a study group on the issue within the ministry and to give the media access to execution sites.

"Opposition parties have criticized Chiba, who lost her seat in the July 11 Upper House election, for remaining in office.

"Since Chiba has made clear her opposition to capital punishment, her decision to sign the execution orders raised criticism and questions. Chiba's qualifications as justice minister are certain to be discussed during the extraordinary Diet session.

"The points she raised deserve a serious response, however.

"Although the need for a debate on capital punishment has long been pointed out, there have been no in-depth discussions. Authorities have kept facts surrounding executions in strict secrecy, allowing the public to stay away from the issue.

"There have been no serious problems because the majority of citizens felt that capital punishment has no direct bearing on them. But the public must now face the issue because the citizen judge system was introduced for trials for serious crimes in May last year.

"It can be quite difficult to form an opinion on the death penalty. We have not been able to take a clear stand on this issue.

"In opinion polls, supporters overwhelmingly outnumber abolitionists. But this type of punishment leaves absolutely no room for mistakes in court judgments.

"Amid the global trend toward abolition, calls are growing overseas for Japan to stop using the death penalty. If Japan maintains capital punishment, it could face various disadvantages and negative treatment from abroad.

"Any decision on the issue must be in sync with the people's sense of justice and views about criminal punishment. We know it sounds banal, but the only way to find an answer is through an exhaustive debate.

"More attention should be paid to the information and perceptions that have built the people's views on the issue.

"Although many people feel that public security is deteriorating, the number of vicious crimes has been declining. How should we understand this perception gap?

"How should we consider the conflicting views about whether capital punishment serves as a deterrent to criminal behavior?

"What about the feelings and suffering of the crime victims and their families? What kind of life do death-row inmates lead, and how do they and people around them handle the day of execution?

"We need to know the realities surrounding the issue for meaningful discussions. Chiba's proposals to create a study group and allow the press to see the execution sites must help move us toward that goal.

"We should closely watch the situation to ensure that Chiba's proposals will not be left in the air or watered down under a new justice minister expected in the near future.

"It can be depressing to think about or discuss the issue of crime and punishment, and the question of whether the death penalty is necessary must be a subject that many people want to avoid.

"But each member of society needs to face this challenge now that citizens are directly involved in criminal trials."

Asahi Shimbun (Editorial, 7/30/2010), Link to article (last visited 7/31/2010)

Saturday, July 10, 2010

Inheritance Rights of Illegitimate Children

"A civil lawsuit over the constitutionality of a law that halves the inheritances of illegitimate children has been referred to the Grand Bench of the Supreme Court, raising the possibility that a judicial precedent which favors the law could be revised.

"The Third Petty Branch of the Supreme Court referred the case to the court's Grand Bench, which is composed of all 15 justices, on July 7. The move raises the possibility that a precedent set in 1995 by a Grand Bench ruling in favor of the Civil Code stipulation could be revised.

"Article 900 of the Civil Code stipulates that the inheritance of a child who is born out of wedlock stands at half that of a legitimate child. In the ruling in 1995, just five of the 15 justices were opposed to the stipulation, stating that it was unconstitutional.

"Since then, five subsequent rulings by petty benches of the Supreme Court have favored the stipulation, but opinions have been split. In a ruling by the Second Petty Bench in September last year, one of four justices opposed the stipulation, and one who ruled that it was constitutional gave the opinion that the law should be changed.

"The latest case arose after a woman from Wakayama Prefecture, who is a legitimate child, applied for her inheritance to be split with her younger brother, who was born out of wedlock, and both the Wakayama Family Court and Osaka High Court set the younger brother's inheritance at half that of his sister. This prompted the younger brother to launch a special appeal.

"If the Grand Bench rules that the Civil Code stipulation is unconstitutional, then the decision could greatly influence the current legal system's attitude to legal marriages.

"The Court Organization Law and Supreme Court regulations state that cases should be referred to the Grand Bench when new constitutional decisions are made or if there is a need to change judicial precedents. Cases at Supreme Court petty benches in which the opinions of justices are evenly split are also forwarded to the Grand Bench."

By Mainichi Shimbun (7/10/2010), Link to article (last visited 7/10/2010)

Tuesday, July 6, 2010

Asahi Shimbun on foreigners' voting rights

"The June 28 edition of the Sankei Shimbun wrote in its editorial that voters should pay close attention to the different arguments from political parties regarding "the framework of this country." On this, we agree.

"The point in question is whether to grant permanent foreign residents the right to vote in local elections. Since we can't see any obvious differences between the two major parties on economic and foreign policies, foreign suffrage is one of the major issues that has split the nation.

"In their election manifestoes, New Komeito, the Japanese Communist Party and the Social Democratic Party pledge to achieve foreign suffrage. Other parties, like the Liberal Democratic Party, the People's New Party, the Sunrise Party of Japan and Your Party, are opposed to the change.

"In contrast, the ruling Democratic Party of Japan's manifesto says nothing about the issue. When the DPJ was formed, its party platform said foreign suffrage should be "realized quickly." After gaining power, then Prime Minister Yukio Hatoyama and then Secretary-General Ichiro Ozawa were eager to make this happen.

"But the DPJ's coalition partner, the People's New Party, and some local assemblies reject the idea. Even some DPJ members are against the move.

"Prime Minister Naoto Kan said in the Diet, "While there is no change in the party's position, there are different opinions that the parties must discuss." With both Ozawa and Hatoyama gone, it seems that the engine behind foreign suffrage has stalled.

"More than 2.2 million foreign residents are registered in Japan, and 910,000 of them have been granted permanent resident status. Japan is already a country comprising people with various backgrounds. It is appropriate to have those people rooted in their local communities to share the responsibility in solving problems and developing their communities.

"It is also appropriate to allow their participation in local elections as residents, while respecting their bonds to their home nations.

"In its new strategy for economic growth, the government says it will consider a framework for taking in foreigners to supplement the work force. To become an open country, Japan must create an environment that foreigners find easy to live in.

"An Asahi Shimbun survey in late April and May showed that 49 percent of the respondents were in favor of foreign suffrage while 43 percent were against it.

"Since public opinion is divided, the DPJ, which put the issue on the public agenda, should not waffle but should give steady and persuasive arguments to the public.

"The LDP is raising the tone of its criticism, saying foreigners' voting rights, along with the dual surname system for married couples, is a policy that will "destroy the framework of this country." The party apparently wants to make the voting rights issue a major conflicting point between conservatives and liberals.

"Some opponents express concerns about the negative effects on national security. However, this kind of argument can nurture anti-foreign bigotry and ostracism. It sounds like nothing more than an inward-looking call for self-preservation.

"Some say foreigner suffrage goes "against the Constitution." However, it is only natural to construe from the Supreme Court ruling of February 1995 that the Constitution neither guarantees nor prohibits foreigner suffrage but rather "allows" it.

"The decision on foreign suffrage depends on legislative policy.

"In an age when people easily cross national borders, what kind of society does Japan wish to become? How do we determine the qualifications and rights of people who comprise our country and communities? To what extent do we want to open our gates to immigrants? How do we control social diversity and turn it into energy?

"Politicians need to discuss the suffrage issue based on their answers to these questions. The issue of foreign residents' voting rights is a prelude to something bigger."

By Asahi Shimbun (Editorial, 7/5/2010), Link to article (last visited 7/6/2010)

Friday, June 25, 2010

International Child Abduction and Japan

"POINT OF VIEW/ Yukiko Yamada: Present system may isolate Japanese mothers

"In discussing the Hague Convention on the Civil Aspects of International Child Abduction, we should note that there are cases in which children living in Japan are spirited overseas by their divorced or separated parents.

"I believe Japan should be a party to the convention. But if Japan joins simply because of pressure from the West, it could cause problems.

"Those who support Japan's participation explain that the nature of the convention is "neutral" as it imposes equal obligations to both parents. According to a report, however, about 70 percent of international child abductions involve mothers taking back their children to their native countries.

"Also in the case of Japanese who married foreign nationals, an overwhelming majority of cases involve Japanese mothers taking back their children from the fathers' countries. When we consider this situation, we should tread cautiously.

"Let us consider situations that involve Japanese mothers and American fathers, which are said to be the most common. When Japanese women marry American men and go to the United States, in many cases, they cannot communicate freely in English and are financially dependent on their husbands. When their marriage breaks up and the parents fight over custody of their children, Japanese women are often forced to live on their own without any job to support themselves or friends to whom they can turn to for help.

"Typically, a woman would have to come up with the equivalent of millions of yen to hire a lawyer for a court battle. Even when the women can speak and understand everyday English, it is difficult for them to fight in court. In the United States, some states are said to lack a system of legal aid that pays a percentage of lawyer fees.

"In the United States, parents are usually granted joint custody of their children in a divorce. The parents' right to see their children on a regular basis is also recognized as a matter of course. Even when a court grants custody to the mother, she is usually required by law to allow weekend visitation rights by the father.

"In many cases, Japanese women are unable to return to Japan unless they give up their children. In some cases, they are victims of domestic violence. Joining the convention could mean forcing mothers and children who have escaped to Japan to go back to their abusive husbands' countries. Mothers could be arrested as kidnappers.

"If Japan signs the convention, it needs to change its systems to fulfill its obligations under the convention. In Europe and the United States, the authorities scan bank accounts and pediatric records when they suspect a child has been abducted by a parent. In many cases, the procedure is carried out by the police.

"In Japan, it is not unusual for divorced mothers to go back to their parents' home with their children. But in cases when the mothers return to Japan with their children, the police may be required to intervene. Many Japanese would regard the situation as strange.

"As an exception, the convention provides that a child does not have to be returned when "there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation."

"But I believe the exceptional case would not be easily recognized. For example, would the exception apply when the wife alone is exposed to domestic violence by her husband? Also, it is difficult to prove a woman's account of her life overseas when she has already left the country.

"In Europe and the United States, where joint custody is the norm, even after couples divorce, parents are usually granted equal rights to see their children. In order to minimize the discrepancy in judicial decisions on child-care and meeting rights among signatories of the convention, I believe Japan will have to shift to a joint custody system from the current regime of single custody.

"As a lawyer, I have handled divorce battles for 30 years. But I know of only a few couples who I thought would be able to properly care for their children through joint custody. In Japan, the parents of divorced couples are often involved in the tug-of-war over how to care for the children.

"Japan needs to come up with a system that matches the actual situation. Ideas worth considering include making joint custody an option or creating a system to adjust the custody issue from the standpoint of children.

"The Japanese government needs to have a system whereby those who enter into international marriages are warned about the risks they could face if they divorce. Support should also be provided to those who divorce.

"Shutting the doors to Japanese parents and children who return home seeking protection and forcing them to return overseas where they could face isolation or worse problems runs counter to the Convention on the Rights of the Child, which calls for the "best interests" of children."

"Yukiko Yamada is a lawyer with the Chiba prefectural bar association and the former chair of the Japan Federation of Bar Associations' Committee on Children's Rights."

By Yukiko Yamada (Asahi Shimbun, 6/24/2010), Link to article (last visited 6/25/2010)

Thursday, June 24, 2010

Surrogacy in Japan


Abstract: "Japan has not yet regulated assisted reproductive technology by law. This lack of rules and regulations leaves to the courts the solution of numerous controversies, and puts patients in a situation of considerable uncertainty about their rights. First, the article uses a Supreme Court case on foreign surrogacy to discuss how courts should decide when there is a conflict between existing laws and the best interest of the child. Then, after describing the current situation and trends of surrogacy in Japan, the article examines a potential problem of coherence in prohibiting surrogacy and at the same time allowing adoption by the intended parents."

Journal: Family Court Review, Volume 48, Issue 3, 2010, Pages 417-430

Link to article

Wednesday, June 23, 2010

Lay Judge System: First Not Guilty Verdict

"CHIBA -- A panel of citizen judges acquitted a man of smuggling stimulants into Japan, setting a precedent for the first non-guilty verdict in a lay judge trial.

"Kikuo Anzai, 59, a company executive from Sagamihara, Kanagawa Prefecture, was acquitted of violating the Stimulants Control Law and the Customs Law at the Chiba District Court on June 22.

"Anzai had been charged with importing stimulants after he was asked by a third person to bring a chocolate can into the country. Prosecutors had demanded Anzai be sentenced to 12 years in prison and fined 6 million yen.

"It marks the nation's first case in which a defendant was acquitted during a lay judge trial. Observers are now focusing their attention on whether prosecutors will appeal the case since none of the past rulings handed down at citizen judge trials has ever been appealed.

"During the trial, whether Anzai had been aware that the chocolate can in his bag contained stimulants became the point of contention. While prosecutors argued that the defendant brought the can into the country after he was commissioned by a person -- who is currently on trial for drug smuggling -- to do so in return for money, his defense counsel claimed that he was unaware of the content of the can as he was entrusted with it as a souvenir for someone else.

"The ruling concluded that the defendant's claim cannot be labeled unreliable, citing the fact that he had complied with a customs request that the can be X-rayed for inspection.

""Based on conventional wisdom, it cannot be recognized that the defendant was unquestionably aware of illegal drugs hidden inside the can," the ruling said.

"Following the decision, the two male citizen judges and three of the four female citizen judges who attended the trial met reporters.

""Although we were presented with the situation that the defendant had faced, there was no solid evidence supporting his guilt," said one of the male citizen judges, a company employee.

"The Chiba District Public Prosecutors Office commented on the ruling following the trial.

""We take the ruling seriously as a result of deliberations among both professional and citizen judges. We believe we did our utmost in making our arguments and presenting the evidence, but we'd like to scrutinize the content of the ruling to see if there were any shortcomings on our part before examining whether to appeal the case," said a representative of the prosecutors office."

By Mainichi Shimbun (6/22/2010), Link to article (last visited 6/23/2010)

Thursday, June 17, 2010

Divorce Ceremonies

"Saori Teshima had long dreamt of the moment. Standing nervously next to her smartly-suited partner in front of friends and loved ones, a sparkling ring appeared before her.

"But contrary to conventional wedding rules, the man at Saori's side did not slip the ring lovingly onto her left hand before sealing their union with a kiss.

"Instead, the pair were handed a hammer - which they held together as they proceeded to smash the ring to symbolise the end of their five-year marriage.

"So goes another divorce ceremony - a bizarre, but increasingly popular ritual among Japanese couples, who choose to end their marriages with the same pomp and ceremony with which they began them.

"From drinking toasts to never seeing each other again, through to symbolic rides in separate rickshaws to reflect the start of a new journey, the ceremonies consist of a string of symbolic acts to mark the definitive end of a marriage.

"Their introduction is timely: more than 251,000 divorces took place in Japan in 2008, a figure blamed partly on the poor economic climate and the end of the salaryman-led family units which used to be the bedrock of much of Japanese life.

"Yet with divorce still something of a taboo in Japanese society, the ceremonies have caught on as a way to publicly formalise the separation in a way that is socially acceptable to friends and family.

"Pioneering the trend for divorce ceremonies is Hiroki Terai, 29, an entrepreneurial former sales man from Japan's Chiba district, who dreamt up the idea after friends of his decided to separate last year.

"Since setting up a company devoted to divorce ceremonies in March, he has been contacted by more than 700 people and conducted 21 divorce ceremonies – costing from £44 to £700 - with a further nine booked.

""A ceremony at the end of a marriage gives the couple and their friends and family the opportunity to gain emotional closure," he said.

""Couples ranging from 21 to 57 have taken part in ceremonies so far. Some wear white dresses, a few opt for cakes, and it's always very moving.

""Everyone deserves a fresh new start. Two couples actually decided to stay together after the ceremony because it made them realise how much they still cared."

"Roland Kelts, a Japan culture expert and lecturer at the University of Tokyo, described how divorce ceremonies were a welcome tool for Japanese to deal with shifting family structures.

""Today's Japanese women are well-educated and worldly," he says. "They watch Sex and the City and wonder why their husbands are not more dynamic.

""And their husbands, having lost the security of lifetime employment and its perks, are wondering why their wives are so impatient. No wonder divorce has risen to a third of Japanese marriages."

"Saori Teshima, 34, and her husband Daigo, 36, who runs a wholesale fish company, has just "celebrated" a divorce ceremony to mark the beginning of their new lives.

"The couple, who have a four-year-old daughter, split last year after Saori discovered her husband was having an affair, and divorce papers are being processed.

"The event began as Saori, dressed in a casual grey dress over jeans and straw hat, and a nervous Daigo, in white shirt and suit, gathered at the gates of a Tokyo temple with a dozen close friends wearing smart clothes and faintly bemused expressions.

"A sombre atmosphere prevailed, as formal greetings were exchanged before the soon-to-be-ex couple was led to two – separate - waiting rickshaws which led them off to "Divorce Mansion", premises owned by Mr Terai which serve as a kind of registry office-in-reverse.

"Following behind on foot, one guest Aoyama Tsuyoshi, 32, a healthcare businessman, said: "I thought it was a joke when I first received the invitation.

""But I soon realised that they were serious as they want to start afresh after their marriage. It is a sad day but I am happy to be here to support them."

""I think the 'divorce ceremony' phenomenon in Japan is healthy - a sign that the country can embrace change as a national 'family,' rather than a cold-hearted 'system' of sclerotic preconceived taboos."

"Upon arrival at Divorce Mansion – a small undercover space with fleuro wall paintings – guests signed a book before being handed a pair of chopsticks as a divorce souvenir symbol of the splitting couple.

"With the couple standing side by side, Mr Terai then declared: "The couple married in May 2005 and they were blessed with a child, however, the husband's business was not going well, also there were relationships issues, so they have decided to divorce.

""I hope that today will mark a new start for the couple. I hope that this ceremony will help them get closure."

"As in a traditional wedding, the climax involved the ring, which was then smashed by the couple with a hammer, prompting polite, if uncertain, applause from the guests.

"Ceremony over, the divorce party headed to a local restaurant – with ex-bride on one table and ex-groom on the other – where a toast of green tea was drunk before a sombre bento box lunch of tempura prawns, rice and miso soup.

"After eating, Saori explained: "My husband found out about divorce ceremonies on the internet and I was against the idea at first. But then I realised it might be a good opportunity to get some closure.

""Today, I am feeling sad but also relieved. I feel a sense of release, like something is finally finished." She added: "I met my husband through friends and we had a very good relationship at first. He was always cheerful and fun to be with.

""We married in a very small ceremony and had a baby girl. But I became suspicious he was having an affair – from smiles over emails on his mobile and fancy chocolate gifts.

""When I confronted him, he confessed. Now the divorce is being processed and we are about to move to new homes."

"For her husband Daigo, the ceremony was less about dwelling on past mistakes and more about creating hope for the future.

""I was very happy to marry her, but over time, we became too used to each other's daily existence," he said.

""It has been very difficult recently, but during the ceremony, I could tell that Saori's mood changed as she smashed the ring – she seemed refreshed and relieved, like a weight had been removed."

"Not everyone was convinced, however.

"Dressed in a black dress that brought to mind funerals rather than weddings, guest Kumiko Takatsu, 35, who works for a bridal company, said: "'I'm not sure this is a good idea.

""It is always very difficult when couples divorce and I don't know if this helps. The atmosphere today was very anxious.""

By Danielle Demetriou (Telegraph, 6/13/2010), Link to article (last visited 6/17/2010)

Monday, June 14, 2010

"Kan Is A Japan Rarity: A Lawyer PM

"In the U.S., the current president, vice-president, first lady and secretary of state are all lawyers. More than 40% of the members of Congress hold law degrees, in fact. Finally, they have some like-minded counterparts at the top of the Japanese government.

"Prime Minister Naoto Kan (pictured) is the first “benrishi” lawyer to be prime minister in Japan since World War II, “benrishi” being licensed to handle patents — such as for his Mahjong machine — and other intellectual property matters.

"Kan’s top aide, Chief Cabinet Secretary Yoshito Sengoku, is a “bengoshi”, or general lawyer. Altogether, the Kan “irregular militia” cabinet has four lawyers, the same number as the final Hatoyama cabinet it replaced, and the new secretary general of the ruling Democratic Party of Japan, Yukio Edano, is also a lawyer.

"That’s quite a sea change from the last administration in the Liberal Democrat Party’s nearly 50-year rule: Taro Aso had no lawyers in his cabinet at all. (...)"

By Peter Landers (Japan Real Time/WSJ, 6/10/2010), Link to article (last visited 6/14/2010)

Friday, May 14, 2010

"Experts divided on signing 'parental kidnapping' treaty

"On the FBI's Web site there is a section for "parental kidnapping," listing parents, including Japanese women, wanted for allegedly kidnapping their own children.

"Japan has been the target of international criticism for not signing the 1980 Hague Convention on the Civil Aspects of International Child Abduction, which aims to secure the prompt return of children wrongfully taken out of the country of their "habitual residence" by a parent.

"After the Democratic Party of Japan took power last year, government leaders started giving serious consideration to signing the treaty, but experts are divided on whether this would be a good idea. Some say Japan should join as soon as possible, but many — even those who basically favor the convention — have expressed concern, citing systemic, legal and cultural differences. With so much at stake, it doesn't seem likely Japan will be signing the treaty anytime soon.

"William Duncan, deputy secretary general of the Hague Conference on Private International Law and a noted expert on the child abduction treaty, says there is nothing technically stopping Japan from signing the treaty and the country should join as soon as possible because not doing so leaves children at risk.

"Eighty-two countries are members of the Hague Convention, including the United States, the United Kingdom, Canada and France. China is counted among them, but really only Hong Kong and Macau are party to the treaty. Of the Group of Eight countries, Japan and Russia are the only two that haven't signed.

""Every country has challenges (when joining the Hague Convention) and none of what I heard here about the challenges that Japan faces is particularly exceptional," Duncan said in an interview during a visit to Tokyo in March. "We will always encourage states to come in as quickly as they can because we know from our experience that this does save children from harm."

"If Japan were to sign the treaty, one of the things it must do is appoint a "central authority" to deal with the issue of international parental abduction, he said.

"At the moment, such cases involve multiple agencies, including both the Justice and Foreign ministries.

"A Justice Ministry official said signing on to the convention would necessitate numerous changes, including setting up a system for handing over children and determining how far the central authority would be allowed to go in searching for those allegedly abducted by a parent.

""Even if Japan decides to join the treaty, there are many technical issues that need to be considered and it won't be easy to overcome," the official said, adding, "Japan should engage in thorough discussions of the pros and cons of the Hague Convention instead of just giving in to international pressure."

"It is estimated there are about 200 active cases involving Japanese, among them 40 dealing with Canada, 83 with the United States and 38 with the United Kingdom, according to the embassies of those countries. The Foreign Ministry said it is aware of 35 cases involving France.

"Left-behind parents "go through hell, absolute hell," said Duncan, who has worked with a number of such people. "It is an enduring wound to have a child taken from you in circumstances where there is no justification for it. It is a terrible thing to see and a terrible thing to live with. . . . It's a situation of constant anguish."

"But attorney Kensuke Onuki, an expert on the issue who has represented Japanese mothers who have brought their children to Japan, said he is against joining the treaty because it would in principle force the children to return to their home country.

"Onuki points out the "taking person" is usually the mother, and almost all of the cases he is currently dealing with involve "domestic violence, unjust control and verbal abuse."

""Why a woman would flee with her child back to her parents' home, leaving everything including assets, is because she can't stay," Onuki said. "And the biggest key as to why a Japanese mother would leave is not because she is scared for herself but because the child becomes mentally unstable."

"Article 13 of the convention does stipulate that children will not be returned if there is a risk it "would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation."

"Duncan says fleeing from an abusive environment is not classed as an abduction.

"Onuki, however, says Article 13 has only been applied to extreme cases of child abuse, arguing that the treaty is based on the rights of parents while the welfare of children is sidestepped.

""What is important is to consider what is the best situation for the child and not the rights of the parents — whether it is better for the child to live in Japan with his or her mother, or live with the father abroad," Onuki said. "But the Hague Convention does not allow that consideration. The only situation that will stop a child from being returned is if the child would be raped or physically abused" by the left-behind parent.

"Another issue that has raised concern is the Western concept of joint custody, as opposed to Japan's sole custody system.

"Article 819 of Japan's Civil Law stipulates that in a divorce, one of the parents gets custody of the child, in most cases the mother, while many Hague members have a joint-custody system.

"In Japan, there is no specific clause in the Civil Law covering the parent without custody, but he or she can seek visitation rights.

"There are problems with this system, however, because mothers often refuse fathers visitation rights and something needs to be done about it, including establishing a stronger system to ensure those rights are upheld, Onuki said.

"But that doesn't mean Japan should revise the Civil Law and jump to create a joint-custody system, he added.

"Revising the Civil Law "would fundamentally change Japan's family system, and that is pretty difficult to do," Onuki said.

"Experts have questioned the benefits of complete joint custody, which gives equal rights to both parents to the point of tossing the child back and forth, legally splitting time to secure the parents' rights.

"Attorney Mikiko Otani, an expert on family law who ultimately supports joining the Hague Convention, said she used to be enthusiastic about adopting a joint-custody system in Japan, but the more she studied other countries' examples the more she realized various aspects merit discussion.

""Children should definitely have interaction with both parents," Otani said. "But I think children should have a stable base. On one hand we have to come up with a way to secure a stable home for children of divorced parents, but on the other hand we need to make sure that the children maintain a loving relationship with both parents."

"Otani, also an expert on international human rights law, said she also has some concerns about how the treaty is implemented, including how the return of children is handled if the mother refuses to give the child back to the country of habitual residence.

""The Hague Convention doesn't say tear the child away from a parent, but the aim of the treaty is the expeditious return of the child, and in some countries the mother can be arrested," she said.

"Otani agrees that the convention is based on the principle of returning the child and only in very extreme violent cases has the Article 13 defense been successfully invoked. The interpretation of Article 13 could be expanded to cases where mothers are victims of domestic violence, but it is not explicitly recognized in the treaty, she added.

""The Hague Convention is rigid and focuses so strongly on the prompt return of the child that I wonder if there needs to be room for flexibility to serve the best interests of the child," she said.

"Otani, who currently handles cases on behalf of left-behind parents abroad and here, said that even though she has some mixed feelings about the Hague Convention, Japan should ultimately follow the international norm.

""At present, Japanese mothers are being called kidnappers and have been put on the internationally wanted criminal list, living in constant fear of having their children taken away," she said.

""I doubt that situation is good for the children. . . . By signing the treaty, I think Japan can resolve this issue within the rules of the common international framework called the Hague Convention.""

By Masami Ito (Japan Times, 5/14/2010), Link to article (last visited 5/15/2010)

Wednesday, April 28, 2010

"Statute of limitation for murder abolished

"The Diet on Tuesday passed bills into law abolishing the statute of limitation for murder cases and doubling the limits for other crimes that result in death.

"The government promulgated and enacted the legislation later the same day.

"The bills to revise the Criminal Procedure Code and the Penal Code were passed at the House of Representatives plenary session with the support of the ruling parties, the Liberal Democratic Party and New Komeito.

"Ahead of the plenary session, the lower house's Judicial Affairs Committee unanimously approved the bills.

"The abolishment and extension of the statutes of limitation also will be applied to past cases whose limits had not expired by the time the legislation was enacted.

"The statute of limitation in a 1995 case in which a couple in Kurashiki, Okayama Prefecture, was fatally stabbed and their house set alight, which was to expire midnight Wednesday, was abolished.

"The government and ruling parties started deliberations on the bills on April 1 at the House of Councillors. They passed the upper house on April 14 and were sent to the lower house.

"Under the revised law, the statute of limitation will be abolished for murder, murder-robbery and other crimes for which the maximum penalty is the death sentence. Before the revision, the statute of limitation expired 25 years after the crime.

"The statute of limitation for sexual assault resulting in death and rape resulting in death, for which the maximum penalty is life imprisonment, will be extended from 15 years to 30 years.

"The duration will be extended from 10 years to 20 years for bodily injury resulting in death and dangerous driving resulting in death, for which the maximum penalty is 20 years in prison.

"The abolishment and doubling of statutes of limitation is expected to prolong investigations into unsolved cases. Because of this, investigative authorities will need to preserve evidence for years.

"Experts have pointed out that if investigators make errors in handing over evidence to their successors, it could result in innocent people being arrested and facing criminal charges.

"Judicial affairs committees of both houses of the Diet therefore adopted supplementary resolutions to the legislation calling for items of evidence to be stored properly.

"Isao Okamura, a lawyer representing the National Association of Crime Victims and Surviving Families, was delighted by Tuesday's developments.

""I welcome [the revision] from the bottom of my heart," he said in a statement.

"But Yukio Yamashita, acting head of the Committee on Criminal Law Legislation of the Japan Federation of Bar Associations, believes the revision is not without flaws.

""It's inappropriate to revise the entire legal system so hastily for a case whose statute of limitation will expire soon," he said.

"The federation finds it particularly problematic that the revision can be applied retroactively to past cases.

""[The Diet] should have summoned constitutional experts and listened to their opinions," Yamashita said."

Yomiuri Shimbun (4/28/2010), Link to article (last visited 4/28/2010)

Friday, April 16, 2010

Transparency in the Supreme Court: New Justice

"The government in March announced the appointment of Kiyoko Okabe, a professor at Keio University's law school, as a Supreme Court justice, effective Monday.

"It will be the first time for more than one woman to concurrently serve among the 15 justices. The other is Ryuko Sakurai.

"It is said that the Cabinet of Yukio Hatoyama has a keen interest in promoting a woman to take over from a retiring male justice. While this is welcome, it seems somewhat belated. Still, this development suggests that society is changing.

"At this juncture, we wish to point out that questions we always had have yet again gone unanswered. Why Okabe? As in past cases, the reasons for the appointment were not made public. What are the tasks that the judiciary must tackle? What is expected of Okabe and with what intent was the appointment made?

"With regard to the appointment of Supreme Court justices, when candidates are selected from among legal experts, it is customary for the Cabinet to accept the recommendation of the chief justice and in the case of intellectuals, the Cabinet takes the initiative and confirms the intent of the Supreme Court.

"This is wisdom that has been built with the independence of the judiciary in mind. While respecting the principle, we have been calling for greater transparency in the process. Increased transparency meets the philosophy of democracy and enhances trust for trials. When a planned appointment is dubious from the viewpoint of separation of powers, enhanced transparency would help voters discern its propriety.

"In recent years, the Supreme Court has issued a number of noteworthy rulings. Among them is the case which questioned the Public Offices Election Law that did not give Japanese citizens living abroad the right to vote and a spate of rulings that paved the way for reducing burdens on consumers struggling under high-interest loans. Of course, we find some rulings unconvincing. However, from a broad perspective, the top court rulings seem to be advancing in a direction that can win public support.

"It is the role of Supreme Court justices, each with a unique personality, to draw out such rulings. Having diversified people with different backgrounds, viewpoints and values on the bench activates debate and gives rise to rulings that meet the times and open up a new era.

"What we find worrisome is that the Supreme Court has been handling a large number of cases. As many as 10,000 cases are put before the top court each year. Even though the lineup of the bench may be diversified, it is questionable whether the justices are able to fulfill their roles as "guardians of the Constitution."

"Many retired justices complain that they were too busy, saying if they had been given more time, they might have been able to engage in more intensive discussions and reach different conclusions. The fact that they harbored such feelings close to regret weighs heavily.

"While the law restricts reasons for appeal to the top court, we don't think it is functioning as it should. While the court is increasingly expected to keep the administration and legislature in check, the number of appeals is expected to grow in response to an increase in the number of lawyers and other factors. Systems that look to the future are needed. Moreover, should the awareness of the judicial world remain as it is? We need to start debate based on a broad perspective.

"The Supreme Court is the last bastion to hear objections of minorities and protect human rights. The contents of rulings are important. At the same time, we should also pay more attention to the selection of justices, the environment surrounding them and how they perform their duties."

By Asahi Shimbun (Editorial, 4/15/2010), Link to article (last visited 4/17/2010)

Thursday, April 1, 2010

"Lay judges' decisions respected by high courts

"With 10 months having passed since the start of the lay judge system, high courts nationwide have rejected all appeals filed by 10 defendants in criminal cases tried by citizen judges under the system.

"This shows that the high courts have respected the decisions handed down so far by lay judges at district courts and their branches across the nation, according to observers.

"On Thursday, the Niigata District Court closed its first trial in a case under the system. This means all 60 district and branch courts have passed judgment on cases under the system, which took effect on May 21 last year.

"According to a Yomiuri Shimbun survey, 417 accused people had received sentences in lay judge trials as of March 19, and just 124 people, or 29.7 percent, appealed the court rulings. This was lower than the figure of 34.6 percent in 2008, when all trials were heard only by professional judges.

"So far, public prosecutors have not appealed for the overturn of a ruling. All 10 people who have so far received appeal court decisions saw their appeals rejected, indicating the high courts' stance of respecting the lay judge decisions.

"In a burglary-injury case in Kyoto, a man who received a 5-1/2-year prison sentence appealed to the Osaka High Court for a reduction in the sentence. But the high court rejected the appeal on March 16, saying, "The ruling given in a lay judge trial can be more severe than the expected sentence in trials ruled only by professional judges because lay judges reflect the points of view and feelings of the public."

"A defense attorney in an appeal trial of a sex crime case in the Tohoku region voiced concern that it may become difficult for appeals against sentences that defendants feels are too severe to be upheld, but added that it is good that lay judges' decisions are respected.

"Meanwhile, 17 people decided to drop appeals they had filed.

"A 24-year-old man who was sent to prison for 17 years for killing a woman at a hotel in Nagoya decided to drop his appeal two months after he filed it. His attorney said the man explained that he realized how appalling his crime was after pondering the sentence. The attorney recalled that the man seemed to take to heart the sentence handed down by the citizen judges.

"Of the 397 lay judge trials that had been held as of March 19, decisions were reached in about 64 percent of them within three days of the first hearings, and 97 percent ended within five days. While this shows that lay judge trials proceeded quickly, various opinions were heard from lay judges at press conferences after the rulings.

""I've been told there's a pile of documents on my desk at the office. Three days is the most I can take off work," a male company employee in his 50s said after he took a part in a lay judge trial at the Chiba District Court for three days in January.

"On the other hand, a woman who participated in a lay judge trial at the Mito District Court for two days in February asked whether two days was enough to consider whether a person is guilty of the crime he or she is accused of."

By Yomiuri Shimbun (3/31/2010), Link to article (last visited 4/1/2010)

Wednesday, March 17, 2010

"Local suffrage for foreigners in sight, but opposition grows stronger

"TOKYO (Kyodo) -- For Chang Yooka, there is hardly a moment in her daily life that she feels she is a third-generation Korean.

"But the 27-year-old faces that reality every time an election takes place in her hometown because she does not have the right to vote in any election.

"Chang was born to Korean parents in Ichinomiya, Aichi Prefecture. She hardly speaks Korean and most of her friends from school or work are Japanese.

"Unlike her parents or grandparents who all suffered bullying and various forms of discrimination in Japanese society because of their nationality, Chang spent her childhood without facing such problems and had no trouble finding a job.

""I've had few bad experiences as a result of being Korean," said Chang, who now lives in Tokyo's Taito Ward and works at Japanese game software developer Konami Corp. She even started studying Korean at college in the hope of learning more about her ethnic identity.

""The only thing that still differentiates us from Japanese people is local suffrage," she said.

"But she and others like her may be granted the right to vote in elections for local governments and assembly members soon, or in a couple of years at the latest, as the government of Prime Minister Yukio Hatoyama is eager to enact a law to extend local suffrage to permanent foreign residents.

"It remains not clear, however, whether the government will submit legislation on the matter to parliament or if it would be passed during the current Diet session through June 16 because of an increasingly fierce backlash from conservative lawmakers from both the ruling and opposition camps.

"Kim Jong Soo, an active advocate of granting local suffrage to foreigners and a third-generation Korean who headed the Korean Youth Association in Japan until very recently, said Koreans and other permanent foreign residents in Japan deserve the right to vote in view of the fact that they have long fulfilled their duty to pay taxes.

""We're talking about local elections not national elections," said the 33-year-old who now serves as a supervisor for the Tokyo-based organization. "We're certainly interested in how our residential areas are managed and we should have the right to take part in local politics."

""If Japan makes this come true, it will be a strong message to the international community that the country does not ignore foreign residents, whose number already exceeds 2.2 million," he said.

"The issue first drew attention in 1995 when the Supreme Court declared that the Constitution does not prohibit granting permanent foreign residents the right to vote in local elections in order to have their views reflected in local administration.

"Since 1998, Hatoyama's Democratic Party of Japan and a few other parties, including the New Komeito party and the Japanese Communist Party, have submitted related bills in vain to the Diet.

"Hatoyama and DPJ Secretary General Ichiro Ozawa, the kingmaker in the ruling party, are among those strongly advocating the legislation.

"Hatoyama expressed his eagerness to submit a bill to extend local suffrage to foreigners earlier this year, noting that this year marks the centenary of Japan's annexation of the Korean Peninsula in 1910.

"Opposition lawmakers claim, however, that Ozawa, who is in charge of the DPJ's election strategy, has the ulterior motive of capturing the support of permanent foreign residents in Japan, who numbered over 910,000 as of 2008.

"Of the total, 490,000 foreigners hold regular permanent residency status, with Chinese constituting the largest group followed by Brazilians and Filipinos.

"The remaining 420,000 have special permanent residency, which is granted to those from the Korean Peninsula and Taiwan who have lived in Japan since before the end of World War II and lost Japanese nationality through the San Francisco Peace Treaty, as well as their descendants. Of those special permanent residents, 99 percent are Koreans.

"The planned legislation faces a major stumbling block in Shizuka Kamei, leader of the minor conservative People's New Party, one of the DPJ's two coalition partners.

"Kamei, an outspoken political bigwig, has said the envisioned law could fan ethnic sentiment among Koreans and lead to conflict with Japanese, and that anyone seeking the right to vote should apply for naturalization.

"In Japan, nationality is based on parentage not location of birth and those who obtain foreign nationality automatically lose Japanese citizenship.

"But Chang, who greatly values her ethnic roots and identity, and does not hesitate to use her real name, has no intention of renouncing her Korean citizenship in exchange for local suffrage.

"Some members of the main opposition Liberal Democratic Party have also stepped up their opposition to hamper the enactment of such a law.

""We are strongly concerned that the results of local elections, especially in a major city or prefecture such as Osaka, could influence national politics," said Seiichiro Murakami, a senior LDP lawmaker who heads a party group opposed to such legislation.

"Murakami and other opponents have expressed concern that Korean voters could sway the course of long-standing territorial disputes between Japan and South Korea over islands such as Tsushima and Takeshima.

"Some opponents argue that if Koreans gain voting rights, they could move to Japan-controlled Tsushima, for example, and elect local assembly members claiming that the island is South Korean territory.

""That's such an extreme assumption," Kim said, arguing that it is based on the prejudiced idea that foreigners are some sort of menace to Japanese society.

"The National Association of Chairpersons of Prefectural Assemblies has also adopted a cautious stance on granting local suffrage to foreign residents.

"It adopted a resolution in January calling on the government to listen to the organization's views on the issue, which it claims "concerns the foundation of democracy" and has "a significant bearing on the administration of local municipalities."

"Supporters maintain that many countries in Europe have introduced some form of local suffrage for foreigners.

"Murakami of the LDP said, however, "Europe has historically functioned in a different framework and that should not be applied to Japan."

"Advocates also maintain that South Korea adopted a legal amendment in 2005 to allow permanent foreign residents aged 19 or older to vote in local elections.

"Although opponents counter that the amendment affects only around 100 Japanese residents living in South Korea, Kim said it signifies a radical shift for a country often described as "nationalistic."

""Japan will not be able to buck the growing international trend," he said, suggesting that the time may come soon for Japan to eventually allow dual citizenship."

By Mainichi Shimbun (3/17/2010), Link to article (last visited 3/17/2010)

Friday, March 5, 2010

Asahi Editorial on Family Law Reform

"It now seems uncertain whether proposed Civil Law revisions that would enable married couples to use separate surnames will be submitted to the Diet during the current session.

"While Justice Minister Keiko Chiba is eager to pass the bill into law, Financial Services Minister Shizuka Kamei of the People's New Party, a ruling coalition partner of the Democratic Party of Japan, has come out clearly against it. Some DPJ members also oppose it.

"The bill reflects recommendations made by the Legislative Council in 1996. However, due to strong opposition by the Liberal Democratic Party, which was then in power, the government has been unable to submit the bill.

"Opponents claim that Japanese culture and tradition demand that married couples use the same family name. They argue that having different surnames would sever family ties and cause children to suffer.

"However, the proposed system will merely give couples the choice of using the same or different surnames when they marry. It does not require or force anyone to keep the surname they were born with. To avoid any confusion, the proposed bill requires couples to decide in advance on their children's surname and to ensure that all siblings have the same family name.

"Furthermore, the bill has proposals to shorten the current six-month period immediately after a divorce during which a divorced woman cannot remarry to 100 days and to abolish discrimination against children born out of wedlock regarding their inheritance rights.

"These proposals all reflect today's diverse lifestyles. We believe these revisions would both create a more comfortable environment for working women to pursue careers and improve the low birthrate.

"The U.N. Committee on the Elimination of Discrimination against Women has recommended the Japanese government promptly implement such reforms.

"According to an Asahi Shimbun public opinion poll conducted last December, 49 percent of respondents supported the idea of letting couples use separate surnames, while 43 percent were against it. Among women in their 30s and 40s, many of whom are working and raising children, nearly 70 percent were for it.

"The times have changed and families now take diversified forms. Women account for more than 40 percent of the working population. The traditional concept of the family took for granted that the man would work while the woman would stay home to look after their children and keep house.

"However, the actual situation today for many people is very far from that outdated concept. Many couples live in common-law marriages because of work-related reasons, even though they know they will face disadvantages. Divorced and single mothers are supporting their children on their own. Providing an environment that makes it easier for such women to work leads to "protecting life," a slogan advocated by Prime Minister Yukio Hatoyama.

"Making the working world better for women will only help rebuild Japan's stagnant economy and society.

"Kamei calls for measures to bolster the economy and stresses the views of employees in advocating revisions to the worker dispatch law. We believe supporting women's advancement in society will also lead to a stronger economy and help to stabilize employment in the long run.

"The DPJ has been urging these revisions. Hatoyama should do everything he can to form a consensus within the DPJ and the ruling coalition. Discussions should be diligently moved forward."

By Asahi Shimbun (Editorial, 3/4/2010), Link to article (last visited 3/5/2010)