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Get to grips with the law

Get to grips with the law


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Kenneth Holmes
29.06.2008


For many westerners, the Japanese administrative and legal system is somewhat of a mystery, irrespective of it being in a foreign language. I mean, why do people need a kouseki, or a juminhyou, or other various arcane pieces of documentation? And when something goes wrong, or worse we get into a touch of trouble, who do we talk to?

Reportedly, in the USA, there is one lawyer for every 320 citizens, while in England the ratio is one to 700. In Japan, there is only one for every 5500. Of the over 20,000 who take the bar examination each year, only around 10% pass. However, this figure disguises the fact that there are subsidiary classes of lawyer in Japan, each with a specific set of tasks that are appropriate to their level of qualification.

In Japan, only bengoshi (full lawyers) are able to undertake all aspects of courtroom litigation in both civil and criminal cases. Accountants and patent attorneys are able to represent clients in certain situations, but are generally only able to certify facts; rarely can they argue a case. Given that there are so few full lawyers in circulation, and their powers all encompassing, their rates tend to reflect their rarity.

So where do you go for cost effective legal support?

There are actually several other classes of legal representatives in Japan, known as shiho shoshi (judicial scrivener) and gyousei shoshi (administrative scrivener). The rather arcane translation “scrivener” actually means a scribe or a copyist, so perhaps a more familiar term would be a notary. These shoshi receive more limited, but more highly specialized training than a full lawyer would (although in some cases a person may apply for and receive a shoshi license by spending at least 10 years in a government administrative position).

What kind of things can a shoshi handle in Japan? Well, to start with, if you wanted to form a company (of which there are various types in Japan, but lets leave that to another article), the notary, together with the accountant, would be responsible for preparing all the documents of incorporation, as well as ongoing work such as renewal of licenses and registrations.
Other areas that foreigners would be likely to call on for legal support, and would be well advised to talk to a notary first, would be preparation of contracts, anything to do with family law (including divorce, unless there are contested assets or disputes over children that will go to court and thus require a bengoshi), preparation of wills, or issues such as personal injury. In Japan, if you injure someone (say in a car accident), it is the norm to compensate the injured party financially.

Another area where the shiho shoshi are used is in real estate transactions. In real estate transactions, shiho shoshi are the only legal specialists who can register transactions such as the change of ownership of property, register a mortgage against a property, etc. The shiho shoshi is the only legally enabled person to notarise all these kind of documents.

Of course one area of concern for most foreigners will be immigration and related procedures. Here the gyousei shoshi can assist in all areas of preparing and filing documentation, as well as petitioning the immigration department should an application be declined.

The shoshi also prepare documentation for and assist in applying for mediation. This is a common practice in Japan whereby if two (or more) parties are in dispute, they can sit down and try and negotiate an amicable agreement. Typically, if an agreement is reached it is prepared by the shoshi, and this becomes a legally binding contract. However, if an agreement cannot be reached then it may proceed to a full court case, whereby only a bengoshi is permitted to represent the client.

In short, be aware that there are options other than a lawyer in Japan, and these options can not only be more knowledgeable, but also much more cost effective.