International Association of Procedural Law
XI. World Congress on Procedural Law (1999)
Procedural Law on the Threshold of a New Millennium
The Challenge of the Information Society Application of Advanced Technologies in Civil
Litigation and other Procedures
Koichi Miki, Professor of Law, Keio University, Japan
* I discussed the following matters with relevant officials at the Supreme Court and
Ministry of Justice, however, I am solely responsible for the following information and
opinion.
I General Introduction to the Code of Civil Procedure in Japan
The Code of Civil Procedure (CCP) in Japan was first codified in 1890, and was
patterned after the German Code (ZPO) of 1877. It was thoroughly amended in 1926 to catch
up with the changes of the times and partly amended in 1948 under the guidance of the
Occupation forces after the war. The 1948 amendment introduced some features of the
Anglo-American system, such as a cross examination. In Junel996 the CCP was overhauled
again for the first time in 70 years. The amendments cover the entire span of the civil
litigation process. At the same time, the Rules of the Supreme Court (RSC) were also
amended to correspond with the changes to the CCP. Both of them came into force from
January 1, 1998. Complete electric filing is beyond the range of the current CCP and RSC,
although they keep up with current advanced technologies to a certain extent, as discussed
in the following section.
II Some modern technologies other than electronic filing in Japan
The CCP and the RSC of 1996 have introduced some modern technologies into Japanese
civil litigation procedures, although not completely digitized ones.
1. Use of facsimile
The documents which are to be submitted to the court are in principle able to be
submitted via facsimile with some exceptions (RSC Art.3). Some types of important
documents must be submitted by hand or through the post such as a complaint, a motion for
summary proceedings, a document for an appeal, a document for voluntary dismissal, and the
like. The court can also serve documents via facsimile with some exceptions (RSC Art. 47).
2. Use of Optical Character Reader
A motion for summary proceedings for an order to pay debts to the Tokyo Summary Court
or the Osaka Summary Court is able to be filed by the special sheets for an Optical
Character Reader (OCR) and the information on the sheets is read by the machine optically
and is treated electronically. A case under the jurisdiction of the Summary courts which
have jurisdiction over the surrounding districts of Tokyo or Osaka can also be filed with
the Tokyo Summary Court or the Osaka Summary Court by such way, instead of filing with the
court which otherwise have the original jurisdiction (CCP Art. 397, RSC Art. 238). This
way of filing makes Summary Courts in megalopolis more efficient and prompt in handling
numerous cases.
3. Multi-Party Litigation
When dealing with multi-party litigation, the court can order each party to submit a
floppy disk or any other type of magnetic disk in which the contents of documents which
have already been submitted to the court by each party are recorded, if it is useful for
the court to draft a final judgment (RSC Art. 167).
4. Telephone Conference System
In the preliminary procedure (the procedure which is to streamline the issues and the
evidence for the formal hearing), the telephone conference system can be used (CCP Art.
170, 176 RSC Art. 88, 91, 96). That is, if one party resides in the distance place or if
the court considers it appropriate, the court may proceed with the preliminary procedure
in such a way as the court and both parties can speak simultaneously by transmitting or
receiving their voices.
5. Video Conferencing Techniques
At the stage of the examination of a witness, video conferencing techniques can be used
when the witness resides a distance away (CCP Art. 204, RSC Art. 123). When using this
technique, the parties shall be present at the court house where the case is pending and
the witness shall be present at the nearest court house for him/her. The parties, their
attorneys and the judges can examine the witness via a picture on the screen and sound
from the loud speaker.
III Completely Digitized Procedures: Electronic Case Files
In answer to my query, the Office of the General Secretariat of the Supreme Court of
Japan stated that there is no concrete plan for completely digitized proceedings in the
near future.
IV Use of Advanced Technologies in Parts of the Proceedings Following the Progress of
a Typical Case
1. Initiating the Proceedings
In Japan, the document which initiates the litigation is a complaint for ordinary
proceedings or a motion for summary proceedings for an order to pay debts, mostly similar
to the filing system in Germany. In any proceedings, the CCP or RSC does not allow filing
via e-mail, ftp, or floppy disks. Article 133 ( 1) of the CCP provides that "A civil
action shall be instituted by filing a complaint with the court", and it applies
mutatis mutandis to summary proceedings for an order to pay debts by article 384 of the
CCP. At present, these provisions are the obvious legal obstacles to adopting electronic
filing in Japanese civil litigation. The relevant officials of the Supreme Court have just
started discussion on a private basis about the possibility of electric filing. The
problem which must be solved before the adoption of an electronic filing system is the
issue of how the court can distinguish the authenticity of the documents which are filed
electronically.
2. File Management and Case Management
In Japan, file and case management virtually rely on written materials and on
electronic materials as well. This means the following. Each of the court clerks has a
personal computer (some are assigned at public expense and some are bought at his/her own
expense) and s/he uses it for his/her daily work. However, the official documents are
still written documents and the electronic files are made for the assistance of the
official documents. There is no computerized network throughout the judiciary nor
systematic scheme for electronic file management, although the General Secretariat of the
Supreme Court has distributed programs which are useful for the management of the case.
In 1995, the General Secretariat of the Supreme Court established a LAN between the
general affairs departments of the courts and started network communication, which is
called JNET. It is mainly for judicial administrative affairs. When each of judges or
court clerks makes personal contact via e-mail, they generally use the e-mail address,
which are provided on a commercial basis, such as Nifty-serve. The common communication
devices between court officials and parties or their attorneys are a telephone and a
facsimile and the e-mail is still very unpopular.
3. Delivering the Initiation Document (Service)
As far as the initiating documents are concerned, they must be delivered by a formal
service, that is, handing over or putting down a written document by the court official
(CCP Art. 138, RSC Art. 58). On the other hand, the documents for preliminary pleadings
(brief) and some other types of documents may be delivered in a more informal style. One
party can deliver the documents directly to the other party by hand-over, via post, by
agent, or via facsimile as the substitute for the service by the court official. However,
any document may not be delivered by e-mail or electronic file transfer. Service by public
notification is still executed in the traditional way on the courts' bulletin board. The
world wide web has not been utilized for the purpose of service by public notification
yet.
4. Preparation of the Hearing
At present, Japanese courts usually use a telephone and/or a facsimile as a daily
communication device with the parties, their attorneys and possible witnesses. The main
reason is that most people have those devices and as yet a relatively small number of
people have an e-mail address. I personally don't think there is any legal obstacle to use
of modern computerized devices such as e-mail between court and parties, attorneys and
witnesses when they prepare the hearing. However, I have doubts about the usefulness of
e-mail as a communication device. The telephone conference system which is adopted by the
CCP of 1996 for the preliminary procedure, as mentioned above, is more useful than e-mail,
because the court and both parties can exchange their opinions simultaneously.
May the judge use information from the internet to supplement the facts of the case at
hand? It totally depends on that what kind of information the judge uses. If s/he tries to
find and use general and common information I don't think there is any problem. On the
contrary, if s/he tries to find and use specific information for the party or the case I
think it is against the umpire's position of judges which is deemed to be neutral and
standing away from the party and the case.
5. Hearing and Evidence
The CCP of 1996 introduced the video conferencing technique at the stage of witness
testimony when the witness resides a long distance away, as mentioned above. In the case
where they need to show a document to the witness, they can utilize a facsimile. However,
this video conferencing technique is allowed only at the stage of witness testimony and is
not allowed at the stage of oral hearing. According to the statistics of the first half of
the year of 1998, there were about 50 cases in which the video conferencing technique is
used for the examination of a witness.
The Japanese CCP has no explicit exclusionary rules of evidence and virtually almost
all evidence is admissible. Therefore the electronic documents are competent in general in
civil litigation. Furthermore, the CCP of 1996 established a new provision which provides
that recording tapes and video tapes shall be treated the same as written documents in the
hearing procedure (CCP Art. 231, RSC Art. 147, 148, 149). On the other hand, a bill for
the provision of magnetic media for computers was shelved and the new CCP didn't establish
an explicit provision concerning them, because there are so many different types of media
and it is not easy to establish a provision which could cover all of them. In practice, it
is usual to examine the hard copy taken from the media instead of examining the media
itself. If the court has doubts about the correspondence between the media and its hard
copy, the procedure of verification would be carried out.
6. Legal Information (Information on Legal Authorities)
There is no official electronic database made or operated by the judiciary which
contains the information of norms, statutes, precedents, or other legal authorities.
However, there are
some (3 or 4) electronic media both Online and Off-line (CD ROM basis) which are made
and operated by the companies on a commercial basis. Most of them contain cases as
precedents and statutory laws. Needless to say, everyone can access to them when s/he
follows the necessary procedures and pays the fee.
7. Final Decision
The project to distribute personal computers and necessary programs such as
word-processing to judges started in the early 90's. At present, they are allocated to all
judges and they use them for their routine work when they draft or review their final
decision. As each machine stands alone in general, there is no obstacle for them to access
their temporary draft or completed opinion and no other people can access it. When they
want to make changes to their decision which is not yet rendered, they can do it freely
without making any arrangement with the court administration. Judges are usually provided
with standard programs for spreadsheets. There is no way for parties or their attorneys to
participate in using computer or programs in the judiciary.
The final decision is notified to the parties only by formal means such as a
pronouncement orally in the courtroom and a service of an exemplification of the judgment
(CCP Art. 25O, 252, 255, RSC Art. 155, 159). The decision may not be served by electronic
means. The final decision is published in written materials including official Law Reports
and commercial based law magazines. You can find no way to access the final decision via
the internet or the world wide web. Although no concrete discussion has started about the
project of the publishing the decision electronically, I don't see any legal obstacle for
the project other than the budget to put the idea into practice.
8. Complex Litigation Proceedings
As stated above, when dealing with multi-party litigation, the court can order each
party to submit a floppy disk or any other magnetic disk in which the contents of
documents which have already been submitted to the court by each party are recorded, in
the case that it is of use to draft final judgment or the like (RSC Art. 167).
9. Appeal
As stated above, judges and court clerks are using computers individually and there is
no systematic scheme for file and case management. To put it another way, the official
record of a hearing must be ouly written documents and any record which is stored
electronically is just a private note for each judge or each court clerk. Therefore, every
official record referred from a lower court to its appellate court is to be written
documents. However, I have heard the practice that floppies are sometimes exchanged
between a lower court and its appellate court. It is not deemed against the law if the
official documents has already been referred to and the floppy disk is just the device to
make their work more convenient.
V Other Judicial Proceedings (Non-contentious Matters)
1. Electronic Record and Register
In Japan, the Legal Affairs Bureau (8 in the major cities), District Legal Affairs
Bureau (50 in each prefecture), and their branch offices (about 1,100 in the whole
country) under the Ministry of Justice handle the matters of immovables registration and
commercial registration as registry offices. In 1972, the Ministry of Justice commenced
the research and the development of the computerization of the registry matters. In 1983,
it reached the experimental stage. In 1988, the Immovables Registration Act and the
Commercial Registration Act were amended and the first computer for electronic
registration system was introduced.
Because there are nearly 300,000,000 units of the land and more than 3,000,000
companies throughout Japan, only 30 percent of the immovables registration and 20 percent
of the commercial registration has been digitized as of the year end of 1998. The
completion of the digitalization is anticipated in 2004 or 2005. At present, the registry
information is not provided in an electronic form but in a written document form. However,
starting from April of 2000, the internet service will be commenced. A individual or a
company who has completed the enrollment procedure as a user will be able to access to the
registry information on his/her own cost via the world wide web.
2. The Registration Proceedings
The registration proceedings such as the application for an entry into the register or
the deletion of an existing entry is still being performed by papers with one exception.
In 1998, the new legislation concerning an assignment of claim enacted and it established
registry system of an assignment of claim for the first time in Japan. According to the
legislation, only the application for an entry into the register of an assignment of claim
can be performed by magnetic disks which have the structures provided by the ordinance of
the Ministry of Justice.
