Supreme Court of Japan
The Supreme Court (Japanese最高 裁判 所, Saiko Saibansho in short,最高 裁, Saiko - Sai ) is in accordance with Articles 76 to 81 of the Constitution of 1947, the head of the judicial branch in Japan. It has its seat in the district Hayabusachō the Tokyo Chiyoda district.
His predecessor at the time of the Empire, Japan was the Daishin'in (大 审 院) was founded in 1875.
Composition and election of judges
The Supreme Court (OGH ) consists of fifteen judges who work in three senates. In addition to these three senates there is a " Great Senate ," which consists of the entirety of all fifteen judges and is always responsible when you want to depart from previous decisions of the Supreme Court. § 10 No. 3 Judicature Act. In addition, if one of the parties to the process makes the unconstitutionality of a law, or where the Supreme Court will determine this, unless that already exists on an earlier decision on the question of § 10 No. 1 and 2 of the Senate shall be responsible, there just.
For the election of judges, Article 79 of the Constitution that initially the Cabinet determines a candidate, but this must be confirmed in a referendum.
The referendums are in practice the abstentions in the vast majority. Therefore, the question arises whether the required majority for rejection is calculated without taking into account abstentions ( simple majority) or whether a majority of all votes ( counting abstentions) is required for the rejection ( absolute majority). The jurisprudence of the Supreme Court decides the question in the latter sense. Therefore, it is almost impossible in practice that in a referendum, a majority against a judge results.
The requirements for appointment to the Supreme Court set out in § 41 Judicature Act. After careers as a judge, prosecutor or lawyer is required; but it is also a law school professors are appointed. At present ( 2007) is only Tokiyasu Fujita, a former professor of administrative law at the University of Tohoku Supreme Court judge, all other judges come from the legal practice.
Unlike the U.S. Supreme Court in Japan there is an upper age limit for Supreme Court Justice. This is when reaching the age of 70, § 50 of the Courts Act, Article 79, paragraph 5 of the Constitution.
The Supreme Court has expressly recognized the competence according to Article 81 of the Constitution to examine laws on their constitutionality. For the examination of international treaties, the Constitution contains no provision. According to the case is here but a limited review of competence to manifest unconstitutionality ( Sunagawa case).
This competence is limited to cases in which the question of unconstitutionality of the decision of a particular case require ( concrete norm control). An abstract norm control is not permitted under the law of the Supreme Court. Therefore, an action was dismissed as inadmissible by which a member of the Opposition had made the unconstitutionality of a law to a precursor of the Self-Defense Forces directly to the Supreme Court asserted.
The Supreme Court is also reviewing body in civil and criminal trial. Access to the revision presupposes criminal that the decision of the lower court is inconsistent with the Constitution or the law of the Supreme Court. The violation of simple laws is not enough in principle. The civil litigation in addition to the complaint of a constitutional violation, the complaint of certain particularly grave procedural error is sufficient.
The Supreme Court also has powers to the administration of justice. Thus, the decision on all personnel matters of national uniform judicial service to the Supreme Court. All judges are regularly - even against their will - offset. The decision on who will point in what capacity is added where, before the Supreme Court. This can lead to judge the lower courts accept uncritically the sake of their own future career, the jurisprudence of the Supreme Court.
Compared to the German Federal Constitutional Court
A major difference to the German Federal Constitutional Court is the highest small number of decisions that have a law declared unconstitutional. By 2007, there have been less than 10.
Next in Japan, the Supreme Court has no monopoly on the decision on the unconstitutionality. Even courts of first and second instance ( Regional and Higher ( national ) courts ) can explain laws unconstitutional. Thus, in a famous decision in 1973 declared the Self-Defense Forces to be unconstitutional, the district court Sapporo. The judge who wrote this opinion, but had to leave the judicial service later; the conviction was overturned in the appeal.
Another difference is that the Supreme Court is not just a Constitutional Court, but also appeal instance in civil and criminal trial.
Finally, the Federal Constitutional Court, the unsuccessful party is always the possibility, but to win before the European Court of Human Rights yet. In Japan, however, there is no possibility of individual complaints before an international court; who loses in the Supreme Court, will ultimately lose.
However, a foreign company will still have the opportunity to complain about the government of the home country, the violation of international law, eg in the context of conflict resolution in the WTO.
Decisions of the Supreme Court are available in full text on its website. However, it gives the lyrics in Japanese only. English and German translations of most important decisions are published in book form (see literature).