[Updated 18 April, with a shorter version also on the East Asia Forum blog.]
A few years ago I began a research project into how the Japanese government manages its public and private law cases, working with a former LLM student from Kyushu University and experienced Australian government lawyer, Associate Professor Stephen Green (now at Doshisha University Law Faculty in Tokyo). Our paper was published last year in the Asia Pacific Law and Policy Journal. The second half of the paper is also under review for a special issue of the International Journal of the Legal Profession, focusing on the remarkably under-researched field of government lawyering.
On 6 February this year I stopped over in Seoul to visit prosecutors in Korea’s Ministry of Justice (MoJ), partly to begin comparing how Korea manages similar litigation. Information kindly provided in interviews and follow-up correspondence reveals considerable similarities, but also some significant differences compared to Japan. The backdrop and issues in Australia regarding government litigation services diverge even further, but there is much scope for mutual learning.
In Japan, the caseload comprises around 20,000 cases, with about 7-8,000 new cases coming in each year and a similar number being disposed of. The caseload has only been increasing slowly, despite reforms to the Administrative Case Litigation Act in 2004 and broader changes to the justice system aimed at moving Japan away from direct ex ante public regulation of socio-economic affairs. Courts do require quicker disposition times and the Japanese government has lost or settled some major cases. Yet the vast bulk of the cases are still managed by only 55 prosecutors (shomu kenji), and government’s success rate is still very high. Many judges are still seconded for 2-3 years to join these MoJ prosecutors, although now judges are also being seconded to many other places (even a few private law firms). In addition, since 2004 a few shomu kenji are hired on contracts up to 5 years from among private (bengoshi) lawyers.
In Korea, caseloads have grown more sharply since the 1980s, including over the last decade. Administrative (or public) law suits grew from 2185 in 1981 (when the democracy movement gained more traction, ultimately leading to collapse of a military-led government in 1987), to 21253 in 2001, to 33424 cases in 2010. In addition, there were 2330 constitutional (court) cases in 2010. There were also 2416 cases of “state litigation” (where the government is state or intervener) in 1981, compared to 7245 in 2001 and 9929 in 2010. These include cases where a plaintiff claims compensation for wrongs committed by the state (as under Japan’s State Compensation Law / Kokka Baisho Ho], rather than nullification or other remedies related to state actions pursuant to administrative law.
Another difference from Japan is that the success rate for the Korean government seems somewhat lower, and – most noticeably – has been rising since 2001. It won 24% and lost 36% of state litigation cases in 2001, but won 37% and lost 15% in 2010. Less dramatically but showing the same trend, the Korean government won 40% and lost only 15% of administrative law suits in 2001, yet won 48% and lost 12% in 2010.
Two organizational features seem to underlie this situation. The MOJ’s National Litigation Division has only 35 prosecutors, but now has 93 “public service advocates”. The latter are those who have qualified (but usually have not yet practiced) as lawyers, following Korea’s difficult legal examination, and who perform legal work for the government instead of serving in the military during the still-compulsory period of conscription. The public service advocates assist in government litigation under the direction of the prosecutors, but also provide overall guidance for officials from administrative agencies who are delegated responsibility from the MOJ to conduct (smaller-scale) litigation. By contrast, Japan’s shomu kenji do get assistance from many “jimukan”, but those officials have not passed Japan’s (even more) difficult State Legal Examination (shiho shiken).
Secondly, the “Korean Government Legal Service” (KGLS) was established in February 2008 as a law firm exclusively for the state (central and local governments as well as public corporations). As well as competing with private law firms who may be requested (quite infrequently) to undertake state or administrative law suits (totaling 1416 newly retained cases in 2011), the KGLS provides the government with general legal advice (including drafting of legislation and contracts, research and opinions, and assistance in negotiating FTAs and other treaties). The KGLS is therefore like the office o the Australian Government Solicitor (AGS), which competes with private lawyers (and indeed in-house lawyers of other government departments) for legal work for the Australian government. However, it is much smaller than the AGS: the KGLS now employs 36 lawyers (less than a statutory cap of 40, scheduled to be abolished anyway), including ex-prosecutors and ex-judges but also lawyers previously in private practice, as well as 38 other staff. The KGLS only lost 115 of 543 cases in 2009, and 119 out of 937 cases in 2011.
When Stephen Green and I earlier interviewed Japan’s MoJ, I got the impression that they preferred to keep matters in-house (including now hiring bengoshi lawyers into the Ministry on limited-term employment contracts) in order to maintain consistency and predictability – features of one vision of the “rule of law” which also pervades the ethos of Japanese prosecutors in criminal cases. But the KGLS experience so far suggests that prosecutors can manage cases rather similarly “at a distance”.
Compared to Japan, however, over the medium to long-term the Korean government may find that it starts to lose a higher proportion of cases, if many KGLS lawyers leave for or return to private practice – acting then for citizens or corporations in claims against the state. Articles 15 and 20 of the KGLS Act require former KGLS lawyers to maintain confidentiality and not to practice regarding matters on which they were engaged while employed by the KGLS, but this seems to be aimed at specific cases – not generic “knowhow” on how to manage litigation involving the state or knowledge of relevant court decisions or views, which will be gained by working for the KGLS.
This would likely be of considerable concern to the Korean government, which has introduced organizational changes to improve its success rate despite rising caseloads. Similarly, the Japanese MoJ is worried about not wasting taxpayers’ funds by losing too many cases. But perhaps both countries can learn one lesson from Australia: the notion that the government should be a “model litigant” – NOT always winning cases, even when its financial and informational resources as a “repeat player” can may make that possible, if this approach to litigation would seem oppressive to (less well resourced) citizens in a democratic system. This rather different view of the “rule of law” has led the Australian government, for example, to actively encourage the use of ADR (alternative dispute resolution) even in lawsuits involving the state.
More instrumentally, however, that tendency is also underpinned by burgeoning costs to the government for litigation and other legal services, since Australia deregulated the market by not requiring government departments to use only the AGS. Thus, Australian policy-makers should look closely at Korea – as well as Japan – to uncover ways to promote further efficiencies and greater predictability in litigation involving the state.