Waseda University Institute of Comparative Law

     The Court Act, established after World War II together with the Constitution, provided that judges should be appointed from assistant judges, public prosecutors, and attorneys. People with wide-ranging backgrounds (including practitioners and academics) were included in the pool of potential candidates, and it was expected that the courts would be composed of people with diverse and well-rounded backgrounds.
     However, despite the fact that many attorneys were appointed as judges in the immediate post-war years, the number of attorneys wishing to be appointed as judges dropped significantly in the subsequent years, and assistant judges became, in effect, the only source of candidates.
     This led to the chronic shortage of judges. As a way seeking to resolve this problem, the law has authorized those who have had practical experience of five (5) years or more as an assistant judge, and who have been nominated by the Supreme Court, to be granted authority equivalent to that of a judge. This special assistant judge system was originally intended as a “temporary” measure, but still continues today after more than 50 years, as the shortage of judges continues to be unresolved.

     The following are the main issues at point in the judicial system reform currently under way: (i) To appoint judges from as diverse a pool of candidates as possible to realize the original intention of the Court Act; (ii) to establish mechanisms to systematically ensure that assistant judges, who are the primary source of candidates for judges, gather as broad experience as possible, and gain diverse and abundant knowledge and experience; (iii) to establish measures to ensure that more attorneys are appointed to the bench; (iv) to phase out the special assistant judge system; (v) to reform the nomination procedure for lower court judges while ensuring that public opinion is reflected in the process. At present, the judges of the lower courts are appointed by the Cabinet based on the list of candidates nominated by the Supreme Court, and no procedure exists to enable the views of citizens to be reflected in the nomination process. To change this, a consultative committee should be established within the Supreme Court to review and provide opinions on suitable candidates upon reference by the Supreme Court (Consultative Committee on the Nomination of Lower Court Judges); and (vi) At present, the appointment of lower court judges is discussed and determined by the Judicial Assembly of the Supreme Court, as part of the Supreme Court’s execution of judicial administration affairs. However, since there was no transparency in the process and criteria of personnel evaluation for judges, it was suggested that a system should be established to secure transparency by making it clear who has the authority to evaluate judges and by what standards, using appropriate evaluation materials, developing an appropriate procedure for disclosing the content of evaluation to the evaluated person, and enabling him/her to file an objection against it, if necessary.
     The judge system in Japan is currently operated in line with these proposed reforms.