Resolution of Disputes and Judicial System (Translation Series of Modern Legal Classics)

Author: (Japanese) Takase Takao, translated by Wang Yaxin
Publisher:
Publish Date: 2004-01-01
Features: The typical decisive dispute resolution is based on adversarial debate in the trial; the typical consensual dispute resolution is based on consultative negotiation in mediation. Takase believes that trial procedures and mediation procedures should be distinguished, but there is also a complementary and fluid relationship between them. The relationship between parties and judges/lawyers during dispute resolution is examined within a broader social context, reflecting the relationship between individuals and the state in the legal order. Generally, during the process of modernization, both individual and state concepts are strengthened, leading to tension in politics and legal systems. In Japan's long practice of legal modernization, the object of change is actually the behavior of the masses, not the authority structure of the state; this fact has been tacitly accepted by most scholars. If the expansion of administrative power is an inevitable destiny of modern society, then to achieve social balance, on the one hand, politics must fully reflect the will of the people, and on the other hand, the legal system should maximize respect for individual subjectivity, enabling them to counterbalance the excessively expanded administrative power.