Law in Japan

By BILL STONEHILL

For every 320 Americans there is a lawyer — indeed, with 799,960 lawyers among a population of 255,600,000, America may have the highest proportion of lawyers per capita in the world. In England, there are 694 Englishmen per lawyer, in France 2,461 Frenchmen per lawyer and in Japan 8,195 Japanese per lawyer. Lest you think the Japanese are exceptionally poorly served, you may wish to reflect that there are 15,748 Koreans per lawyer, with a mere 2,813 lawyers for Korea's population of 44,300,000.* See footnote!

According to Article 72 of the "Bengoshiho" or "Lawyer's Law," courtroom litigation in Japan is reserved exclusively for lawyers, like the United States, but in Japan non-lawyers engage in a very broad range of activity that in the USA would be exclusively reserved for lawyers. Drafting wills and uncontested divorces, to give just two examples, are the province of Shiho Shoshi (judicial scriveners). The training and licensing exams for a Shiho Shoshi (judicial scrivener) or Gyosei Shoshi (administrative scrivener) are comparable to the training a lawyer might receive in the USA, but more limited and specialized. 

In all there are four legal categories other than "lawyer" in Japan: the Shiho Shoshi (judicial scrivener) and Gyousei Shoshi (administrative scrivener) already mentioned, and patent attorneys and accountants. By changes introduced this year, patent attorneys can now go to court for their clients. Accountants have always been allowed to go to court under a limited number of circumstances for their clients, such as in certain types of debt collection. This power has also been widened this year, giving accountants more latitude to go to court on behalf of their clients. 

Accountants are usually reluctant to go to court, as they are not really experienced in trials, trial procedures and litigation. A decent lawyer would eat the average accountant alive if one dared to step into a courtroom. What is much more important is the role that accountants play outside the courtroom. In Japan it is accountants, not lawyers, who are in charge of forming corporations and handling renewals of documents of incorporation. Indeed, in Japan, lawyers rarely get involved in the corporate administrative work that is the bread and butter of lawyers in the USA. This falls mainly into the hands of accountants. 

Counted another way, including all the specialist personnel that act the role of a lawyer within their field, there are 864 Japanese for every legal specialist, a proportion pretty much in line with most of Europe and the rest of the world. 

Perhaps the most interesting point about Japanese lawyers, "bengoshi," is the fact that many spend little time on such matters as personal injury, family law, estate planning, inheritance, or drafting contracts. Japanese lawyers tend to concentrate on civil litigation, with some specializing exclusively in real estate, a potent source of dispute in Japan. There are some lawyers specializing in divorce, but these are usually divorces where there is contested property, particularly real estate. 

Within the Japanese legal system, the most unfamiliar figures to Americans accustomed to lawyers doing everything are the Shiho Shoshi (legal scrivener) and Gyosei Shoshi (administrative scrivener). As Clay McKinney, an American lawyer practicing in Japan who has written extensively on Japanese legal practices explains their role, ". . . These specialists have not passed the National Legal Examination, but have received legal training in their specific field and have passed a government examination in their respective field of expertise. Judicial and administrative scriveners prepare forms and petitions for those who wish to petition the courts or administrative agencies; they may also make limited appearances on their client's behalf." 

Yet the fact remains that lawyers are few and far between in Japan. All told, there are only about 16,000. Lawyer's fees tend to be out of proportion, and lawyers also fancy that they are an "elite." Only 700 applicants out of the 20,000 or so would-be lawyers who sit for the legal exam each year are allowed to pass. The Japanese law exam is replete with obscure, mind-numbing questions. Other than proving that a successful candidate has an elephantine memory, the Japanese legal test seems to do little more than select drudges with monstrous egos. Although there are some excellent Japanese lawyers, both foreigners and Japanese who know the legal profession well are not particularly impressed by the quality of Japanese lawyers as a whole. 

The result of too few lawyers is increased bottle-necks in litigation and growing pressure to allow non-lawyers to engage in more and more litigation that was once exclusively the province of lawyers. Pressure is also growing, and tentative discussion has also begun about bringing in some sort of jury system — of course, with a Japanese flavor. The Japanese do not presently use a jury, but instead a panel of three judges. 

Like many other aspects of the Japanese system, the legal profession is crying out for a change. Change is, in fact coming, but very, very slowly. The worry is that it is coming too slowly. As never before, Japan is under pressure to modernize its entire structure or risk falling further and further behind. For all the usefulness of the Shiho Shoshi and Gyosei Shoshi as "part-lawyers," what Japan needs are more lawyers, not less, and a legal profession more widely accessible to more of its citizens. 

The lack of easy access to lawyers, and also the stratospheric fees many of them charge, mean that as Japan’s society grows increasingly complex, and difficult legal issues such as those involving the Internet become more and more common, resolution of conflicts becomes increasingly more difficult. 

Although there are brave voices claiming that Japan will be turned into the “most advanced Internet nation in the world” in five years, and the government is prepared to waste fortunes throwing money at this, there is no doubt that Japan’s infrastructure is far too rigid to cope with the increasing complexity that an information society seems to be bringing in. Unless Japan takes real steps to drastically increase the number of lawyers and make legal service both convenient and reasonably priced as a part of thoroughgoing infrastructure reform, Japan will find itself mired in the dust of competitors, as they inexorably pull ahead and leave Japan behind forever. 

©Bill Stonehill 2000   All rights reserved

* Author's addendum, 2005-01-27: In response to a reader enquiry, these statistics come from two sources. I believe the first was testimony in front of the Senate by then Vice President Al Gore in 1998, and the second a UN report on  criminal justice giving comparative numbers of lawyers. I found both of these by a simple three- or four-word Google search —  something like "lawyers — numbers — international comparisons".

Fortunately, things seem to be on their way to getting better in Japan, as the Japanese have started a law school system and the government has committed itself to doubling the number of lawyers in Japan in the next 10 years.

Editor's note: Bill Stonehill hails from Chicago, Illinois. Trained as an engineer and China specialist, he has now been living in Tokyo for well over 20 years. He imports Swiss watches, is expert at taking them apart, and if anyone knows what makes Japan tick too then he does. From 1999 until 2001 he wrote a regular Japan column for the Morrock News Service (sadly discontinued), which was enjoyed by Web-surfers around the world. We greatly appreciate the author's allowing us  to republish some of his very best articles here in Eyes on Japan.