Outline of the Japanese Civil Procedure Law

Author: (Japanese) Fumizō Honmoku
Publisher:
Publishing Date: 2006-05-01
Features: Outline of the Japanese Civil Procedure Law, originally written by the Japanese scholar Fumizō Takagi and translated by Chen Yunián, was first published by the Commercial Press in early 1911. It was one of the most influential Japanese legal masterpieces translated by Japanese students at the time, and by 1913, it had already gone into its third edition. The current proofreading is based on the third edition.
I. The Japanese Civil Procedure System
Japanese civil procedure law scholar March Akira once pointed out that civil procedure, as a legal culture, is a Western concept. Despite significant efforts, there are still many shortcomings. Japan’s introduction of Western procedural legal culture and the establishment of its procedural legal system on Eastern soil followed a long and winding path of imitation and innovation over more than a century. These innovations were inseparable from their ability to learn and study foreign experiences. It is worth noting that the Japanese Civil Procedure Law includes civil evidence law and does not have a separate unified evidence law like the Federal Rules of Evidence in the United States.
The 189X Civil Procedure Law was a product of Japan’s Meiji Restoration, fully transplanting the German Civil Procedure Law of 1877. It posed a significant challenge to traditional civil adjudication, particularly the introduction of the adversary system, which was difficult to accept and led to delays in judgments. Over the past century, the law has been amended multiple times. In 1926, influenced by the 1895 Austrian Civil Procedure Law and the 1924 German revised Civil Procedure Law, which strengthened the inquisitorial system, the law was comprehensively revised. From the first to the fifth volume, the trial procedure was strengthened, enhancing the court’s authority to direct the litigation process. This was done to avoid delays by introducing the principle of judicial inquiry and adopting the method of cross-examination between parties. It can be said that in the procedural design of civil procedure in Germany, Japan, and other countries, the adversary system, which grants parties the right to manage substantive content, is combined with the inquisitorial system, which grants the court the right to direct the procedure, forming a unique procedural model for civil procedure in continental law systems like Germany and Japan.
From 1926 to 1998, Japan experienced almost no civil procedure reforms. This was due to economic reasons, as the Commercial Code and Company Law were continuously revised, while calls for procedural reform were consistently ignored by the Diet. On June 26, 1996, the Japanese Diet officially passed the new Civil Procedure Law, which took effect on January 1, 1998. The drafting of the law began in 1990 and was conducted through repeated discussions and deliberations by the Civil Procedure Law Review Committee, composed of scholars, judges, and lawyers under the Ministry of Justice. The reform primarily focused on four aspects: First, shifting from loose adjudication to centralized adjudication, reforming pre-trial dispute clarification, and determining disputes before questioning, with three dispute procedures (preliminary oral argument, argument preparation procedure, and written preparation procedure), implementing relative waiver of rights, allowing parties to choose one during the trial process. Second, concentrating evidence, establishing the party consultation system and the duty to produce documents for the purpose of centralized adjudication. Third, reforming the appellate system of the Supreme Court. Fourth, introducing a small claims procedure for cases with a value of less than 300,000 yen, handled by the (simple trial court) through a single hearing and judgment.
In 2000, the Judicial Reform Review Report—Supporting Japan’s Judicial System in the 21st Century was passed to alleviate the surge in disputes and establish a system that is more accessible, user-friendly, and reliable, ensuring fair and effective implementation. In July 2003, the Civil Procedure Law was revised again. This revision primarily focused on three aspects: First, planned adjudication, where judges, after hearing both sides, plan the trial process, including when to finalize disputes and evidence, the time for cross-examination, and the time to render a judgment after oral arguments. Second, expanding pre-litigation evidence collection procedures to collect evidence more effectively and comprehensively before filing a lawsuit. Third, specialized litigation procedures, establishing specialized committees for cases like medical malpractice and labor disputes, with specialized personnel handling them in specialized venues.
II. The Development of Modern Chinese Civil Procedure Law
It is well-known that ancient China used the “syncretic code” as its basic legal form, with no independent civil code or civil procedure code. The (sprout) of modern civil procedure law began in the 1880s with the introduction of French civil procedure law into China. In 188X, the Frenchman Billepuin (Anatole Adrien, 1837–1894) translated and published The French Code of Laws (published by the Tongwen Guan Zujin Version). This book included France’s six major codes, one of which was Civil Code Manual, a Chinese translation of the French Civil Procedure Law. Its publication also marked the beginning of the transmission of Western comprehensive civil procedure codes to China. However, the large-scale introduction of foreign civil procedure law and its theories primarily took the form of a series of compiled civil procedure law works published around 1905. From the late Qing Dynasty to 1949, more than 600 specialized, translated, and textbook works on civil procedure law were published in China. The emergence of civil procedure law in China from nothing to something was one of the major achievements of the late Qing Dynasty’s new-style code compilation efforts.
In the 32nd year of the Guangxu reign (1906), Minister of Law Shen Jiaben presided over the drafting of the Draft Criminal and Civil Procedure Law. For the first time, criminal and civil procedures were legally distinguished, but due to opposition from provincial governors like Zhang Zhidong, it was not implemented. In the 2nd year of the Xuantong reign (1910), the Draft Civil Procedure Law was completed, but it was not put into effect before the Qing Dynasty was overthrown. After the establishment of the Republic of China, the Beiyang government completed the new Draft Civil Procedure Law in 1921 and renamed it the Civil Procedure Regulations in November of the same year, implementing it. With the establishment of the Nanjing Nationalist Government, the drafting of the Civil Procedure Law began, which was promulgated successively between 1930 and 1931 and implemented along with the Implementation Law of the Civil Procedure Law in 1932, becoming the basic legal basis for civil procedure in areas under the actual control of the Nationalist Government.
In 1935, the Ministry of Justice promulgated the Procedural Notes for Handling Civil Procedure Cases, an important regulation covering all aspects of civil procedure. It further specified the implementation details of various provisions in the Civil Procedure Law, making it an indispensable supplement to the execution of the Civil Procedure Law.
The emergence of modern civil procedure law was greatly influenced by Japanese experience. This book is a manifestation of the spread of Japanese experience in China. Before the Meiji Restoration, Japan was part of the Chinese legal tradition, but after the restoration, it fully implemented modernization policies, transplanting Western legal systems and culture. Japan’s 189X Civil Procedure Law was a complete transplantation of German civil procedure law and is still referred to as the “mother law”, belonging to the civil law system. Based on similar legal family consciousness, Minister of Law Shen Jiaben believed that if foreign laws were to be imitated, Japan’s experience should be taken as the model, because “Japan’s old system was heavily influenced by Tang law. After the Meiji Restoration, it adopted Western law, and within a few decades, it became a strong nation.”
It is worth noting that the first edition of this book and the Draft Civil Procedure Law of the 2nd year of the Xuantong reign (1910) were published in the same year, December. This draft was also based on the German Civil Procedure Law and consisted of four volumes, 800 articles. Volume I: Trial Courts (divided into five chapters: subject jurisdiction, territorial jurisdiction, designated jurisdiction, agreed jurisdiction, and the of court personnel); Volume II: Parties (divided into seven chapters: capacity, multiple parties, litigation representation, litigation assistants, litigation costs, litigation guarantees, and litigation relief); Volume III: General Trial Procedure (divided into five chapters: general provisions, trial procedure of local trial courts, trial procedure of primary trial courts, appellate procedure, and retrial procedure); Volume IV: Special Trial Procedure (divided into five chapters: (), certificate litigation, preservation litigation, public notice procedure, and personal status litigation). It is clear that the draft is fundamentally consistent with this book in terms of main content and structure. Although this draft was not formally implemented due to the collapse of the Qing Dynasty, it was conditionally adopted by the Republic of China government and laid the foundation for subsequent governments to compile more (more comprehensive civil procedure codes).
III. Revisions to the Current Civil Procedure Law of Our Country
The current Civil Procedure Law was promulgated and implemented after revisions in 1991, based on the Trial Civil Procedure Law promulgated in 1981 and incorporating the experience of civil trials in China between 1982 and 1991. The current Civil Procedure Law has been the basic law for China’s civil trials for the past 15 years. However, modern concepts and systems such as procedural supremacy, judicial independence, the legal community, and party autonomy have constructed a dominant discourse network, challenging the practice of civil procedure and exposing the shortcomings of the current system:
First, the 1982 Civil Procedure Law, from the perspective of China’s legislative history, had greater political significance than legal significance. Among the basic laws, only the Criminal Law and Criminal Procedure Law were enacted earlier, and their promulgation signaled the state’s determination to replace policies or movements with law. This helped strengthen public confidence in the rule of law and was also necessary for subsequent economic development. The 1982 Civil Procedure Law was promulgated in just a few years, lacking corresponding civil judicial practice and academic research. It can be said that this trial law had inherent shortcomings. By 1991, nearly a decade after its implementation, the practical experience gained during this period needed to be fixed in law, while some emerging issues also urgently required revisions to the trial law. However, at that time, the research on civil procedure systems and the maturity of legislative techniques were not sufficient to create a relatively perfect Civil Procedure Law.
Second, social changes. This change is multifaceted. On the one hand, there are changes in the domestic environment. The current Civil Procedure Law was promulgated before the establishment of the market economy, which meant it could not fully reflect modern civil procedure concepts or ideas aligned with the market economy. China’s Constitution has been amended twice, and although the market economy system in China is not yet perfect, it has been basically established. With the rapid development of China’s market economy, disputes have surged, and new types of cases such as environmental pollution cases, product liability cases, and securities infringement cases have increased. Additionally, issues like the protection of collective rights have placed higher demands on the current law. On the other hand, changes in the international environment. From the late 20th to the early 21st century, to address the crisis of civil justice, countries around the world launched a wave of civil judicial reforms, and none of these reforms were achieved through the revision of the Civil Procedure Law: for example, the United Kingdom promulgated the new Civil Procedure Rules in 1999, Germany implemented the Civil Procedure Reform Act in 2002, Japan revised the Civil Procedure Code in 1996 and 2003, and Taiwan also revised the Civil Procedure Law twice after 2000. This provides a good reference for China’s judicial reform.
Third, the development of technology has raised new challenges for civil procedure. The rapid advancement of modern science and technology has had a profound impact on civil procedure law, such as the promulgation of the Electronic Signature Law, which inevitably affects the evidence system.
Fourth, the current Civil Procedure Law has become fragmented. It is well-known that China began judicial reform in the 1980s. Judge Jing Hanjiang summarized the process of reform as “emphasizing party burden of proof—reform of trial procedures—reform of trial procedures—reform of trial system—reform of litigation system—reform of judicial system,” while Judge Huang Songyou pointed out that “the phenomenon of judicial reform reflects changes in procedural operation rules, but in essence, it contains issues of the operation system of judicial power.” These reforms have become standardized operations in the field of adjudication, requiring legal backing. In the absence of timely revisions to the Civil Procedure Law, the People’s Courts have relied on the current Civil Procedure Law as the basic framework, reforming aspects such as evidence, execution, simple procedures, general procedures, and retrial procedures, primarily through judicial interpretations by the Supreme People’s Court. It can be said that judicial interpretations have “amended” the Civil Procedure Law in all aspects. Moreover, judicial interpretations that exceed legal provisions violate the spirit of the rule of law. With the continuous advancement of judicial reform, the revision of the Civil Procedure Law has been put on the agenda, and related discussions have been pushed forward to be more comprehensive and in-depth, with issues in various aspects of the civil procedure process receiving varying degrees of attention.
Therefore, reviewing the historical process and referring to the experience of other countries will be very meaningful in reality.
Fumizō Takagi’s Outline of the Japanese Civil Procedure Law was originally divided into two volumes. The current proofreading and re-publication merge them into one volume.