Judicial Education and Training in Japan

To qualify as a lawyer (bengoshi) with full rights to give legal advice and represent clients – and also to be appointed as a senior court judge or public prosecutor – candidates must pass the National Legal Examination (shiho shiken), and then be trained at the Legal Research and Training Institute (LRTI). University legal education still takes place primarily at the undergraduate level. Every year, about 45,000 students graduate with a Bachelor of Laws. However, most of them do not become lawyers, instead finding employment in governmental organs or private corporations, because it has been extremely difficult to pass the National Legal Examination. In 2004, while more than 40,000 people took the Examination, less than 1,500 examinees passed. The number of successful examinees is intentionally limited. The number was 500 in 1990, then gradually increased to 1,000 in 2000, and to around 1500 in 2004. It was expected rise to around 3,000 per annum in 2010, as part of a broader program of judicial reforms underway since 2001, but the recent election of a new President for the Japan Federation of Bar Associations now makes this very unlikely.
Another aspect of the agenda advanced by the Judicial Reform Council (JRC) related to the training of prospective legal professionals was the inauguration of 68 new postgraduate “Law Schools” from April 2004. However, although it is easier for their (carefully selected) students to pass a “New Legal Examination” (shin-shiho shiken), it remains one of the most difficult in Japan – with a pass rate of about 30%. The old shiho shiken, which could be attempted without any university degree, has been gradually phased out to allow the new Law Schools to get established, although (as recommended by the JRC in 2001) a small new scheme will be introduced to allow those unable to afford Law School to still qualify to become a bengoshi, prosecutor or Judge.
But what happens after this Examination and when one joins the almost 3,000-strong judiciary in Japan?

First, all those who have passed the Examination receive the same further but more practical legal training at the LRTI, administered by the Supreme Court and funded out of the judiciary’s budget. The five courses taught in this Division of the LRTI comprise criminal and civil litigation (keiji and minji saiban, both taught by judges and concentrating on yoken-jijitsu-ron or what facts have to be alleged proven to make out claims), prosecutions (kensatsu, taught by prosecutors), civil and criminal law practice (minji and keiji bengo, taught by bengoshi). Trainees receive a government stipendium and subsidised accommodation, as well as externships in lawyers and prosecutors offices as well as a court. The rises in numbers of those passing the Examination each year over the last decade have been paralleled by reductions in the period of overall training at the LRTI, from 24 to 12 months.
The style of LRTI instruction is very much based on court-related work, especially litigation techniques and judgment-writing. It retains remnants of the pre-War orientation towards training to become judges (or prosecutors, who were then considered equal or even superior to judges). This is despite the large proportion of judicial work involved in settling cases, rather than rendering formal judgments. It also goes against the reality that around 80% of LRTI graduates proceed into private legal practice, which is steadily involving more transactional legal work. Moreover, from the late 1960s some of the brightest graduates began declining offers to work as judges upon graduation (see TANIGUCHI, YASUHEI in SCHEIBER, HARRY et al (Eds) Emerging Concepts of Rights in Japanese Law. Berkeley, UC Berkeley – Robbins Collection, 2007). Recently, Tokyo’s now very large law firms have become even more attractive career options (see MILHAUPT, CURTIS, AND MARK WEST (2004) Economic Organizations and Corporate Governance in Japan: The Impact of Formal and Informal Rules, Oxford, Oxford University Press, 2004).
Once graduates have decided on their career path, there is still very little lateral movement. The Courts Law has long provided that bengoshi or prosecutors can be appointed as judges, but there has been almost no exchange. One very limited exception has been the re-appointment as judges of prosecutors “loaned” from the Courts to the Ministry of Justice, usually for 2-3 years (outlined here). Another is the appointment of bengoshi as full-time judges, since the Supreme Court changed its policy due to increasing pressure from the JFBA. However, no more than five were appointed this way each year through the 1990s. Somewhat more have been so appointed following the JRC recommendations, but the numbers remain low – ranging between 4-10 yearly over 2003-9 (see, in Japanese, <http://www.toben.or.jp/news/libra/pdf/2009_11/p02-16.pdf>). A further recent development has been the appointment of bengoshi as part-time judicial officers (called chotei-kan) empowered to conduct civil or domestic relations conciliation procedures with the same level of competence as a judge. They are appointed from among attorneys who have practical experience of five or more years, and 237 were so appointed over 2004-9.
The few who are appointed to the judiciary from among bengoshi will have received some ongoing Continuing Legal Education, administered through Bar Associations, although this too is a recent and quite limited development. Those who pursue a career as a judge upon graduation from the LRTI are dependent on ongoing education administered by the Supreme Court. The Court itself organises various seminars or longer conferences (eg two jitsumu kyogikai in 2009), usually to encourage – but not, at least formally, to force – more unified practices among lower courts dealing with pressing socio-legal issues (eg traffic accidents from the 1960s). The LRTI also offers a few such conferences (collectively called sogo bunya kenkyukai: one of the two in 2009 was for judges seconded as professors to the new Law Schools). The LRTI offers more area-specific Seminars over 2-3 days (saiban bunya betsu kenkyukai: 19 in 2009), with numbers of attendees similarly capped at 20-40 judges each. Usually each lower court or Division within larger ones gets funding to send a judge to attend such events, meaning that judges – especially younger ones – do not get the opportunity to attend them very often.
In addition, through the LRTI the Supreme Court arranges six induction courses (shokumu donyu kenshu) especially for newly appointed judges (eg for one week immediately after graduation from the LRTI and before commencing work in the courts; 4 days after three years of judging; 3 days after ten years and promotion from Associate to Full Judge; also 3 days for those few judges appointed from among bengoshi). There are also some separate induction courses and ongoing CLE Seminars specifically for Summary Court judges (five in 2009).
All such official judicial training is conducted internally; in general judges cannot get funding to attend conferences or educational events hosted by other organisations such as the JFBA. However, the Supreme Court does arrange for some short-term study tours (hakengata kenshu). In 2009 there were two to media organisations (newspaper companies and the national broadcaster NHK – for 16 full judges), three to private companies (Tokyo, Osaka, Nagoya – for 24 full judges), and two to a university or technology institute to get IP-related training (3 judges, one for 3 months rather than 2 weeks). This program offers one-year secondments by full and especially associate judges to the Bank of Japan (one) and private companies (nine judges), with the Supreme Court covering their salaries and some further expenses.
Lastly, the Court organises a growing number of other long-term secondments. One longstanding example is to the MoJ as shomu kenji (10 planned for 2010), where over 2-3 years the judges obtain new perspectives on legal practice and the workings of government by helping represent it in administrative and civil cases. Others go to the MoJ to assist with other work such as law reform initiatives over 2-3 years (10 in 2010). Another established practice is secondment directly to the Tokyo District Prosecutors Office for 2 years (a few judges, having at least 5 years’ experience). All these judges resign and get appointed as prosecutors (kenji), then get reappointed when rejoining the courts. So do almost all judges who are seconded to other Ministries or government agencies (a few each and also for 2 years in principle, although some of these also simultaneously have another status (eg Tribunal Member or shinpankan if working in the Japan Fair Trade Commission). This includes the Foreign Ministry and its missions overseas, and usually another judge is seconded to JICA or the MoJ to assist them with legal technical assistance projects abroad. Around 30 associate judges do a year’s research based at courts or universities outside Japan (eg in 2009: 9 out of 29 to Europe, 16 to the US, and two each to Australia and Canada). A few judges are usually seconded also to the House of Representatives’ Legal Affairs Division (hoseikyoku) or to the Social Insurance Agency (shakai yokin hoken kiko), and one to the Keidanren’s 21st Century Policy Institute thinktank.
The gradual diversification of such secondments is also evident in placements now to private law firms (about 10 judges for 2010). They become registered as bengoshi for the two years, but also remain Court Officials (saibansho jimukan). Associate judges (and prosecutors) have been allowed this possibility since legislation was enacted in 2004 pursuant to JRC recommendations (see, in Japanese, <http://www.kantei.go.jp/jp/singi/hourei/hanjiho.html>). The aim, especially for these newer programs, is to broaden the judges’ horizons at an early career stage, and help them to be more adaptable and interactive – traits increasingly seen as valuable for judges in the post-JRC context of greater popular participation in the judicial system. And lastly, although no data is readily available, hundreds of judges now teach full-time or especially part-time in Japan’s new postgraduate Law Schools around the country.

Author: Luke Nottage

Prof Luke Nottage (BCA, LLB, PhD VUW, LLM LLD Kyoto) is founding co-director of the Australian Network for Japanese Law (ANJeL), Associate Director (Japan) of the Centre for Asian and Pacific Law at the University of Sydney (CAPLUS), and Professor of Comparative and Transnational Business Law at Sydney Law School. He specialises in international dispute resolution, foreign investment law, contract and consumer (product safety) law.