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Japan The Criminal Justice System
Three basic features of the nation's system of criminal
justice
characterize its operations. First, the
institutions--police,
government prosecutor's offices, courts, and correctional
organs--
maintain close and cooperative relations with each other,
consulting frequently on how best to accomplish the shared
goals of
limiting and controlling crime. Second, citizens are
encouraged to
assist in maintaining public order, and they participate
extensively in crime prevention campaigns, apprehension of
suspects, and offender rehabilitation programs. Finally,
officials
who administer criminal justice are allowed considerable
discretion
in dealing with offenders.
Until the Meiji Restoration in 1868, the criminal
justice
system was controlled mainly by daimyo
(see Rule of Shogun and Daimyo
, ch. 1). Public officials, not laws, guided and
constrained people to conform to moral norms. In
accordance with
the Confucian ideal, officials were to serve as models of
behavior;
the people, who lacked rights and had only obligations,
were
expected to obey. Such laws as did exist were transmitted
through
local military officials in the form of local domain laws.
Specific
enforcement varied from domain to domain, and no formal
penal codes
existed. Justice was generally harsh, and severity
depended upon
one's status. Kin and neighbors could share blame for an
offender's
guilt: whole families and villages could be flogged or put
to death
for one member's transgression.
After 1868 the justice system underwent rapid
transformation.
The first publicly promulgated legal codes, the Penal Code
of 1880
and the Code of Criminal Instruction of 1880, were based
on French
models. Offenses were specified, and set punishments were
established for particular crimes. Both codes were
innovative in
that they treated all citizens as equals, provided for
centralized
administration of criminal justice, and prohibited
punishment by ex
post facto law. Guilt was held to be personal; collective
guilt and
guilt by association were abolished. Offenses against the
emperor
were spelled out for the first time.
Innovative aspects of the codes notwithstanding,
certain
provisions reflected traditional attitudes toward
authority. The
prosecutor represented the state and sat with the judge on
a raised
platform--his position above the defendant and the defense
counsel
suggesting their relative status. Under a
semi-inquisitorial
system, primary responsibility for questioning witnesses
lay with
the judge and defense counsel could question witnesses
only through
the judge. Cases were referred to trial only after a judge
presided
over a preliminary fact-finding investigation in which the
suspect
was not permitted counsel. Because in all trials available
evidence
had already convinced the court in a preliminary
procedure, the
defendant's legal presumption of innocence at trial was
undermined,
and the legal recourse open to his counsel was further
weakened.
The Penal Code was substantially revised in 1907 to
reflect the
growing influence of German law in Japan, and the French
practice
of classifying offenses into three types was eliminated.
More
important, where the old code had allowed very limited
judicial
discretion, the new one permitted the judge to apply a
wide range
of subjective factors in sentencing.
After World War II, occupation authorities initiated
reform of
the constitution and laws in general. Except for omitting
offenses
relating to war, the imperial family, and adultery, the
1947 Penal
Code remained virtually identical to the 1907 version. The
criminal
procedure code, however, was substantially revised to
incorporate
rules guaranteeing the rights of the accused. The system
became
almost completely accusatorial, and the judge, although
still able
to question witnesses, decided a case on evidence
presented by both
sides. The preliminary investigative procedure was
suppressed. The
prosecutor and defense counsel sat on equal levels, below
the
judge. Laws on indemnification of the wrongly accused and
laws
concerning juveniles, prisons, probation, and minor
offenses were
also passed in the postwar years to supplement criminal
justice
administration.
Data as of January 1994
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