Supreme Court (Japan)
The Supreme Court ( Japanese 最高 裁判 所 , Saikō-Saibansho; short: 最高 裁 , Saikō-Sai ) forms the head of judicial power in Japan according to Articles 76 to 81 of the 1947 constitution . It is based in the Hayabusachō district of Tokyo's Chiyoda district .
Its predecessor at the time of the Japanese Empire was Daishin'in ( 大 審 院 ), founded in 1875 .
Composition and election of judges
The Supreme Court (OGH) has fifteen judges who work in three senates. In addition to these three senates, there is a "Grand Senate", which consists of the total of all fifteen judges and is always responsible if the previous case law of the Supreme Court is to be deviated from. Section 10 No. 3 Courts Constitution Act. In addition, the Grand Senate is responsible if one of the parties to the process asserts the unconstitutionality of a law or if the Supreme Court wants to determine this, unless there is already an earlier decision on the question, § 10 No. 1 and 2 there .
For the election of judges, Article 79 of the Constitution stipulates that the cabinet first appoints a candidate, but that this candidate must be confirmed in a referendum .
In practice, the vast majority of abstentions in referendums. Therefore, the question arises whether the majority required for a rejection is calculated without taking the abstentions into account ( simple majority ) or whether a majority of all votes (including abstentions) is required for rejection ( absolute majority ). The case law of the Supreme Court decides the question in the latter sense. It is therefore almost impossible in practice for a referendum to result in a majority against a judge.
The requirements for an appeal as a judge at the Supreme Court are regulated by Section 41 of the Courts Constitution Act. After that, work as a judge, public prosecutor or lawyer is required; however, professors from a law faculty can also be appointed. Currently (2007) only Tokiyasu Fujita is a former professor of administrative law at Tōhoku University and is a judge at the Supreme Court, all other judges come from legal practice.
Unlike the American Supreme Court , Japan has an upper age limit for Supreme Court judges. This is when reaching the age of 70, Section 50 Judicial Constitution Act, Article 79 Paragraph 5 of the Constitution. Supreme Court Presidents are typically over 60 when they are appointed.
Competencies
According to Article 81 of the Constitution, the Supreme Court is expressly given the authority to review laws for their constitutionality. The constitution does not contain any regulations for the examination of international treaties . According to the case law, however, there is a limited competence to examine whether there is an obvious unconstitutionality (Sunagawa case).
However, this competence is limited to cases in which the question of unconstitutionality is necessary for the decision of a specific case (specific judicial review). An abstract control of norms is not permissible according to the case law of the Supreme Court. As a result, a lawsuit in which an opposition MP alleged the unconstitutionality of a law on a forerunner of the Self-Defense Forces before the Supreme Court was dismissed as inadmissible .
The Supreme Court is also a review body in civil and criminal proceedings . In criminal proceedings, access to an appeal presupposes that the decision of the lower court is incompatible with the constitution or the case law of the Supreme Court. The violation of simple law is generally not enough. In civil proceedings, in addition to the complaint of a constitutional violation, the complaint of certain particularly serious procedural errors is sufficient.
The Supreme Court also has powers to administer justice. The decision on all personnel issues relating to the nationwide judicial service lies with the Supreme Court. All judges are regularly transferred - even against their will. The decision of who is transferred to where and when in what capacity rests with the Supreme Court. This can lead to judges of the lower courts uncritically adopting the case law of the Supreme Court in the interests of their own future careers.
President
| Surname | Kanji | Appointment date |
|---|---|---|
| Tadahiko Mibuchi | 三 淵 忠彦 | 4th August 1947 |
| Kōtaro Tanaka | 田中耕 太郎 | March 3, 1950 |
| Kisaburo Yokota | 横 田 喜 三郎 | October 25, 1960 |
| Masatoshi Yokota | 横 田正俊 | August 6, 1966 |
| Kazuto Ishida | 石田 和 外 | January 11, 1969 |
| Tomokazu Murakami | 村上 朝 一 | May 21, 1973 |
| Ekizo Fujibayashi | 藤 林 益 三 | May 25, 1976 |
| Masao Okahara | 岡 原 昌 男 | August 26, 1977 |
| Takaaki Hattori | 服 部 高 顯 | April 2nd 1979 |
| Jiro Terada | 寺 田治郎 | October 1, 1982 |
| Koichi Yaguchi | 矢 口 洪 一 | 5th November 1985 |
| Ryohachi Kusaba | 草場 良 八 | February 20, 1990 |
| Toru Miyoshi | 三好 達 | November 7, 1995 |
| Shigeru Yamaguchi | 山口 繁 | October 31, 1997 |
| Akira Machida | 町 田 顯 | November 6, 2002 |
| Niro Shimada | 島 田仁郎 | October 16, 2006 |
| Hironobu Takesaki | 竹崎 博 允 | November 21, 2008 |
| Itsurō Terada | 寺 田逸郎 | April 1, 2014 |
| Naoto Ōtani | 大谷 直 人 | January 9, 2018 |
Comparison with the German Federal Constitutional Court
A major difference to the German Federal Constitutional Court lies in the extremely low number of decisions that have declared a law unconstitutional. By 2007 there were fewer than 10.
Furthermore, in Japan the Supreme Court has no monopoly on ruling on unconstitutionality. Courts of first and second instance (regional and higher (regional ) courts ) can also declare laws unconstitutional. In a famous 1973 decision, the Sapporo District Court declared the self-defense forces unconstitutional. The judge who drafted this judgment, however, later had to leave the judicial service; the judgment was also overturned on appeal.
Another difference is that the Supreme Court is not a pure constitutional court, but also a review body in civil and criminal proceedings.
After all, at the Federal Constitutional Court there is always the possibility for the losing party to win before the European Court of Human Rights . In Japan, however, there is no possibility of an individual complaint before an international court; whoever loses before the Supreme Court loses for good.
However, a foreign company still has the option of complaining about the violation of international law via the government of the home country, for example in the context of conflict resolution in the WTO .
Search for choices
The full text of decisions of the Supreme Court are available on its website. However, you will only find the texts there in Japanese . English and German translations of particularly important decisions are published in book form (see literature ).
Individual evidence
- ↑ Saibanshohō, Law No. 59/1947.
- ^ Decision of February 20, 1952, website of the Supreme Court.
- ↑ This decision has also been translated into German, cf. Go Koyama, People's Examination of the Supreme Court Judges, in: Eisenhardt u. a. (Ed.), Japanese decisions on constitutional law in German, Cologne, Heymanns, 1998 (Japanese law series, Japanese jurisprudence sub-series, volume 1), pp. 458 ff.
- ^ Decision of December 16, 1959, website of the Supreme Court ; German and English translation in the collections listed under literature.
- ^ Decision of October 8, 1952, website of the Supreme Court.
- ^ LG Sapporo dated September 7, 1973, see Takahashi et al. a., Kenpō hanrei hyakusen (100 selected decisions on constitutional law), Volume 2, 5th edition Tokyo 2007, p. 376 f.
- ↑ Sapporo Higher Regional Court of August 5, 1976, see Takahashi et al. a., Kenpō hanrei hyakusen (100 selected decisions on constitutional law), Volume 2, 5th edition Tokyo 2007, p. 378 f.
- ^ Search form on the OGH website.
literature
- Eisenhardt et al. a. (Ed.): Japanese decisions on constitutional law in German. Heymanns, Cologne 1998 (Japanese Law Series, Japanese Jurisprudence Sub-Series. Volume 1).
- John M. Maki: Court and Constitution in Japan, Selected Supreme Court Decisions 1948–1960. University of Washington Press, Seattle 1964.
- Toshiyoshi Miyazawa (translated by Robert Heuser and Kazuaki Yamasaki): Constitutional Law (Kenpō). Heymanns, Cologne 1986 (Japanese Law Series. Volume 21).
Web links
- Supreme Court website - Japanese and English
Coordinates: 35 ° 40 ′ 49.2 " N , 139 ° 44 ′ 37.1" E