著者

丸田 隆

出版者

関西学院大学

雑誌

法と政治 (ISSN:02880709)

巻号頁・発行日

vol.51, no.1, pp.163-213, 2000-04

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The content of this article is as follows : 1. Introduction 2. Japanese Culture and Japanese Nationality (1) Interrelation between Japanese Culture and Nationality Argument (2) Japanese Language 3. Analysis of the Japanese Nationality Argument (1) Anti-jury Argument based upon Japanese Nationality (2) Classic and Revised Japanese Characteristics Argument (3) Japanese Legal Consciousness and Nationality Argument 4. Mixed Court System and Nationality (1) Structure of Mixed Court System (2) Pro-Mixed Court Argument in Japan (3) Examination of Japanese Nationality in the Procedure of Mixed Court Trial 5. Conclusion 1. This paper examines three basic aspects on the civil participation into the judiciary in Japan : first, to analyze the Japanese nationality discourse in the context of the so-called "Japanese Culture, " second, to explore both the function and the reality of the mixed court system and, finally, to scrutinize whether or not the Japanese culture obstructs the normal function of the mixed court system in Japan. 2. Although Japan once had a criminal jury system before World War II (1928-1943), since then Japan has had no civil participation system in trials (with the minor exception of using lay assessors in the civil mediation stage.) In the modern world, it might be atypical enough to see a country that employs professional judges, solely recruited from among young legal trainees and trained as career judges, who exclusively preside over trials without any involvement of lay citizens. In the construction era immediately after World War II, there was a proposal to introduce the jury system into Japan by the SCAP (Supreme Commander for the Allied Powers). Japanese high officials declined to accept the idea, explaining that the Japanese were too immature, the jury system was incompatible with Japanese character, and the Japanese' respect and deference to the higher authority. 3. The exploitation of Japanese uniqueness, such as Japanese culture, nationality, weather, national ritual in order to reject introduction of foreign goods was well exemplified by the Japanese high officials who confronted foreign pressure about the restricted trade policy. Their cliche is since Japan has its own tradition and culture, the foreign goods are not suitable to Japan and will bring adverse effects to the nation. They often utilized the claim of Japanese uniqueness claim to contest international pressure to open the Japanese market, for products like oranges and rice (they said that Japanese liked more oranges with soft skin and sticky rice.) 4. Apart from the high official's claiming the Japanese uniqueness, the Japanese nationality argument is often cited as a reason to resist implementing a new legal system in Japan. Above all legal scholars and lawyers use the Japanese nationality argument against the introduction of jury systems in Japan. Because the Japanese are inclined to rely upon the authority, resist expressing shy to express their own opinion, and shy away from arguments, have no concern with others, the jury system where a group of lay citizens find facts and concludes with a final verdict would bring a disastrous result, and thus they believe in the trials presided by professional judges. The basic tenet of this way of thinking is that without the best and brightest people's (high officials' or professionals') control, the Japanese will lose their way and cannot manage things by themselves. This contention has two presumptions : Japanese people are incapable of with handling fact-finding because of their national characteristics and, secondly, those who manage judiciaries (mainly professional judges) are exempted from those kind of general characteristics. Are these presumptions appropriate? 5. Basically from where did the stereotypical generalization of the Japanese character come? Some "anthropologists" and "sociologists" seriously have examined the source of the Japanese uniqueness. Some explained with a geological reason