An earlier experience of lay involvement in court decisions in Japan – The Jury 1928–1943

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Watson, Andrew (2016)
  • Publisher: German-Japanese Association of Jurists

Lay judge, or “saiban-in”, courts try serious cases in Japan. Sitting together, professional judges and lay judges decide guilt and sentence. Resembling Anglo-American\ud jurors, and unlike lay judges elsewhere, saiban-in are selected at random and sit in only one case. Dissimilar to mixed tribunals in some countries, where they cannot, or do not in practice, Japanese lay judges question witnesses directly, giving them a more active role in fact finding than jurors. Before their inception, in May, 2009, ordinary citizens’ participation in the criminal justice system was very limited. A criminal jury system did exist from 1928 to 1943. It was not, however, a success. This article tells of the creation of the jury system in the 1920s and examines reasons for its failure including the law itself, opposition by the judiciary, cultural elements (taken by some to confirm that under no circumstances could jury trial work in Japan) and political factors such as descent into authoritarianism, militarism and war.
  • References (54)
    54 references, page 1 of 6

    Code of Criminal Procedure in 2004, which became effective in 2009, Commissions may now order that prosecutions be commenced. See H. FUKURAI, The Re-birth of Japan's Petit Lay Judge and Grand Jury Systems: A Cross-National Analysis of Legal Consciousness and the Lay Participatory Experience in Japan and the U.S., in: Cornell Int'l L. J. 40 (2007) 315, 323-328.

    W. BEASLEY, The Modern History of Japan (Weidenfeld and Nicholson 1973).

    16 This publication was established in 1900 by the lawyer Masutarō Takagi with the principal object of spreading legal information of benefit to the general public.

    17 “Celebrating the Passage of the Jury Bill”, Hōritsu Shinbun, 28 March 1923.

    18 J. HALEY, The Spirit of Japanese Law (University of Georgia Press 1998) 52.

    19 Baron Ki'ichirō Hiranuma (1867-1952) later served on the Great Court of Judicature (1921-1923), and subsequently as Minister of Justice and eventually Prime Minister. He was a prominent right wing leader and remembered for his role in establishing the Kokuhonsha nationalist society in 1924 which aimed to combat the spread of liberal and foreign ideas and to promote what it saw as Japan's traditional national spirit. In office he did much to develop the thought police. After the Second World War he was sentenced to life imprisonment.

    20 Kisaburō Suzuki (1877-1940) became prosecutor for the Court of Cessation in 1912, Prosecutor General in 1921, Minister of Justice in 1924 and Home Minister between 1927-1928 and again in 1932. Very much associated with Ki'ichiō Hrianuma at the Ministry of Justice, he was also very active in the Kokuhon-sha nationalist society.

    21 “Celebrating the Passage of the Jury Bill”, Hōritsu Shinbun, 28 March 1923. It is worthy of observation that both Ki'ichirō Hiranuma and Kisaburō Suzuki participated in the foundation of the Japan Jury Association in 1928 with its goal of educating the general public about the jury system. It can at least be speculated that their conversion to the cause helped to soften demands for the most democratic aspects of the jury including non-interference by judges with its verdict. The conjecture arises that they may have decided to join the movement to limit the attainment of its objectives.

    22 Jury Act, Artt. 12, 23 and 27. It was calculated that between 1.7 and 1.8 percent of the population were eligible for jury service.

    23 Jury Act, Art. 88. See JAPAN JURY ASSOCIATION, Jury Guide (1931) section 19, for an explanation of the meaning and significance of the three types of questions that a judge could ask the jury: “main questions” (shumon), “supplementary questions”(homon), and “other questions” (betsumon). A. DOBROVOLSKAIA, The jury system in pre-war Japan: an annotated translation of the jury guidebook, in: Asian Pacific Law & Policy Journal 9 (2008) 269-270.

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