Sunday, January 30, 2011

"Japan must hurry to join Hague treaty

"International marriages are on the rise, and subsequently so are cases in which former spouses engage in international custody battles over their children.

"To help address this situation, the government set up a senior vice-ministerial council involving related ministries and tasked with discussing the possibility of Japan joining an international convention. The discussions necessary for Japan to join the convention should be expedited.

"The Hague Convention on the Civil Aspects of International Child Abduction contains the principle that children from an international marriage who are removed from their country of residence by one of their divorced parents, without the other parent's consent, must be returned to the country of residence.

"Signatory nations are obligated to provide administrative cooperation in such efforts as discovering the whereabouts of such children and restoring them to their country of habitual residence.

"Eighty-two countries, mostly in the West and Latin America, have signed the convention, while Japan has not.

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"Friction over Japan's status

"This has led to trouble between Japan and signatory nations, with Japanese women returning to this country with their children and being sued over parental rights by their former husbands in their original country of residence. There are said to be nearly 100 such cases involving Japanese and U.S. parents.

"Earlier this year, U.S. Secretary of State Hillary Clinton asked Foreign Minister Seiji Maehara for Japan to join the convention soon. The French Senate adopted a resolution along the same lines earlier this week.

"There is a strong view within the government that Japan should not deepen the diplomatic friction over the issue.

"The convention itself is based on the idea that disputes related to parental rights should be resolved in accordance with the law of the original state of residence.

"Therefore, the convention is not a framework under which only Japan suffers a disadvantage. By becoming a signatory, the government of this country can seek the return to Japan of children wrongfully removed to, or held in, another signatory nation.

"The number of Japanese who marry foreigners has recently averaged around 40,000 a year, about quadrupled from 1983, when the Hague convention came into force. As if in line with the increase, the number of couples who eventually divorce and battle over parental rights also is rising.

"The times require Japan to join the Hague convention, which has become established as the international standard.

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"Govt has work to do

"For Japan to join the convention, the government has to choose a supervisory ministry and prepare relevant domestic laws. It also has to take measures to inform international couples of the contents of the Hague convention.

"Domestic violence by former husbands is often cited as a reason why Japanese women take their children from their country of habitual residence to Japan. More than a few people are wary of Japan's signing the convention, saying it will harm the interests of Japanese citizens if such mothers are obliged to return their children.

"The convention stipulates that if there is a high possibility that return would expose a child to danger, the relevant authority of the state receiving the request is not obliged to order the return of the child.

"We hope the government will do its utmost to dispel lingering apprehension by examining actual cases in which parents refuse to return children and look into what sort of measures other countries are taking with regard to domestic violence."

By Yomiuri Shimbun (1/28/2011), Link to article (last visited 1/30/2011)

Thursday, January 20, 2011

"Lawyer-less lawsuits increasing

"Despite significant growth in the number of lawyers in recent years, the number of litigants who choose to represent themselves in civil lawsuits has also been rising steadily.

"According to Supreme Court statistics, 73 percent of civil lawsuits were undertaken without legal representation last year--up 14 percentage points from 2000. This contrasts with the growth of about 80 percent in the number of lawyers over the same period, as a result of reforms to the judiciary system.

"This state of affairs runs counter to the purpose of the judiciary reforms: to make it easier for people to hire lawyers. The increase in lawsuits undertaken without legal representation--in which plaintiffs or defendants are not represented by professional counsel--appears to reflect the high fees charged by lawyers, observers said.

"The Supreme Court's Legal Training and Research Institute is planning to conduct a survey on such lawyerless civil lawsuits.

"The number of lawyers in the nation rose from about 17,000 in 2000 to 30,000 in December. The increase was expected to encourage competition among lawyers, thereby resulting in lower fees, which would make it easier for people to seek lawyers' help.

"However, the Supreme Court's data showed the percentage of civil lawsuits without lawyers in district courts rose from 59 percent in 2000 to 73 percent, or 139,491 cases, between January and October 2010.

"The top court attributed the rise partly to an increase in lawsuits in which borrowers are demanding that moneylenders repay unlawfully high interest payments the borrowers made on loans.

"This type of civil suit--which has a particularly high percentage of cases without lawyers--has sharply increased since 2006, when the Supreme Court ruled that annual interest rates exceeding the maximum of 15 percent to 20 percent set by the Interest Rate Restriction Law are illegal.

"Even excluding these lawsuits, however, the percentage of civil cases without lawyers was mostly unchanged from 10 years ago at about 60 percent.

"This apparently is due to the fact that lawyers' fees remain high. Just the advance payment for retaining professional counsel can be hundreds of thousands of yen.

"With this and the risk of losing a court battle, many members of the public do not feel they can readily hire a lawyer.

"In addition, ordinary citizens now have better access to information about filing lawsuits through the Internet. As a result, some legal experts say, an increasing number of people consider filing lawsuits on their own.

""It's possible lawyers have avoided requests in which their pay would be low," a senior court official said. But a 37-year-old lawyer working in a Tokyo law firm said, "As the number of lawyers has increased, the competition to survive has intensified.

""Though one of a lawyer's roles is to serve the public interest, we can't afford to accept requests for unprofitable work," he said.

"Many lawyers have demanded improvements to the system to help finance civil lawsuits, under which offices of the Japan Legal Support Center (Houterasu) pay lawyers to represent people in court.

"In some lawsuits without lawyers, judges need to advise parties who are not legal professionals. This can be problematic, however, as it may draw criticism that the impartiality of the trial is being compromised.

"Therefore, the Legal Training and Research Institute will ask a panel comprising nine judges and scholars to study current conditions and the potential problems in lawsuits without lawyers, starting this year.

""I think there are two types of lawsuits without lawyers," said Prof. Satoru Shinomiya of Kokugakuin University, who worked on the judicial system reforms and headed a Japan Federation of Bar Associations office for research on judicial system reforms.

""In one type, lawyers are not necessary because the points under dispute are not that complicated. In the other, the parties asked for lawyers' help but were rejected," Shinomiya said.

""In provincial regions where there are still fewer lawyers than in urban areas, there must be many cases in which lawyers should offer assistance. Contributing to society and the public is a very important mission of lawyers. Bar associations also should conduct research on why there are more lawsuits without lawyers," he said."

By Yomiuri Shimbun (1/17/2011), Link to article (last visited 1/20/2011)