Abstract
Little attention has been given to litigation costs and attorney fees in Japan because these are thought to be technical issues. But litigation costs and fees are considered a serious barrier to low-income parties’ access to justice. In particular, the question whether or not attorney fees should be included in the reimbursable cost of litigation is one of the most controversial issues in Japanese reform debates about civil litigation.
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Notes
- 1.
T. Tanase, The Cost of administration of justice, Koza Minji soshoho, Vol. 1, p. 216 (Japanese).
- 2.
M. Ito, The burden of litigation cost and compensation of attorney fee, Hanrei Minsjisoshyo no hori, Vol. 2, p. 93 (1995) (Japanese).
- 3.
In 1984, the Tokyo High Court made a decision to recognize the litigation itself as abuse and admit the defendant’s attorney’s fee as a necessary cost. In1988, the Supreme Court reversed the decision and declared that it is necessary for the plaintiff to file a case knowing that there is no legal basis to recognize the litigation as an abuse. (Decision of the Supreme Court, January 26, 1988, Minshu Vol. 42, No. 1, p. 1.).
- 4.
Decision of the Supreme Court, February 27, 1969, Minshu Vol. 23, No. 2, p. 441.
- 5.
T. Sono, Damage claim of attorney’s fee, Shin Jitsumu Minji Soshoho, Vol. 4, p. 104 (1982) (Japanese); M. Tamura, Attorney’s fee, Jitsumu Minnji Soshoho Vol. 2, p. 158 (1969) (Japanese).
- 6.
T. Kojima, Review of Decision of the Supreme Court, February 27, 1969, Hanrei Hyakusen, 2nd (1982) (Japanese).
- 7.
Ito, supra note 2Â at 101; Y. Hirai, Saiken Soron, 2nd, p. 95 (1994) (Japanese).
- 8.
T. Nakano, The cost shifting rule, Kashitsu No Suinin, p. 256 (1978) (Japanese).
- 9.
Before 1975, the number of attorneys was less than 10,000 (White Paper on Attorneys by Japan Federation of Bar Associations in 2010, p. 60 (2010)).
- 10.
Id. at 98.
- 11.
Law schools in Japan provide a two-year curriculum mainly for pre-law graduates and a three-year curriculum mainly for other undergraduates.
- 12.
The number of successful takers of the bar exam more than doubled from 1,009 in 2006 to 2,079 in 2010. The success rate, however, dropped quite dramatically from 48% in 2006 to 25.4% in 2010. The main reason for that is that the number of people trying to pass it increased dramatically from 2,091 in 2006 to 8,163 in 2010. One can try to pass the bar exam three times.
- 13.
The largest lending company applied for Chapter 11 (Corporate Reorganization) in September of 2010. The number of creditors will be 1 million and the total amount of claims will reach around 1trillion JPY (ca. US $10 billion). The number of bad loan cases will be decreased.
- 14.
District courts have jurisdiction over claims where the value of the subject matter exceeds 1,400,000 JPY (ca. US $14,000).
- 15.
Summary courts have jurisdiction over claims where the value of the subject matter does not exceed 1,400,000 JPY (Art. 33 of Court Act).
- 16.
Tabe, Attorney fees, Jitsumu Minji Soshoho, Vol. 2, p. 175 (Japanese).
- 17.
For example, only the retainer fee (T. Nakano, The Cost shifting rule of attorney fees, Jurist No. 388, p. 83 (1968) (Japanese).
- 18.
The special provision for litigation in person is implemented in England and Wales (Rule 48.6 of Civil Procedure Rule 1998).
- 19.
M. Reimann, Cost and Fee Allocation in Civil Procedure, General Report III.4.c (2010).
- 20.
The chairman is Professor Aoyama.
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Wagatsuma, M. (2012). Recent Issues of Cost and Fee Allocation in Japanese Civil Procedure. In: Reimann, M. (eds) Cost and Fee Allocation in Civil Procedure. Ius Gentium: Comparative Perspectives on Law and Justice, vol 11. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-2263-7_16
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