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Asian Lawyers Exchange: Seminar on the Death Penalty and the System of Scriveners in Japan 亚洲律师交流:关于日本死刑与書士制度研讨会



On April 21, 2024, the Asian Lawyers Network (ALN) welcomed a group of lawyers from China, facilitating an exchange between Chinese and Japanese legal experts. The day was structured around two focused seminars. The morning seminar featured Mr. Katayama Hirohiko (片山朋彦), who discussed the abolition of the death penalty and its current state in Japan. In the afternoon, a second seminar took place where Mr. Hayakawa Akihide (早川明秀), an administrative scrivener, spoke about Japan’s scriveners’ system and its role. 




Below is a summary of the seminars.





Abolition of Death Penalty 废除死刑 

In 1977, In 1977, the Declaration of Stockholm was drafted, calling on every government around the world to halt all executions and condemn governments that uphold the death penalty. By the end of that year, 16 countries had abolished it, and this number rose to 108 in 2020. By 2021, 144 countries had abolished the death penalty either in law or in practice. "In practice" refers to countries where the death penalty is legal but not enforced, such as South Korea, which has not carried out executions since 1988. As of 2022, 55 countries still actively enforce the death penalty, which include regions in North America, China, India, Taiwan, Africa, the Middle East, etc.


One thing to note is that China does not disclose its execution statistics, making it difficult to include in global data. In 2020, executions reached a record low globally due to COVID-19. From 2020 to 2022, Iran and Saudi Arabia primarily executed the most people, most of them were political prisoners and those convicted of drug offenses. In 2022, China reportedly executed several thousand people, leading the list followed by Iran, Saudi Arabia, Singapore, the United States, and Vietnam.


Execution methods in 2022 varied: beheading in Saudi Arabia; lethal injection in the USA, China, and Vietnam—with pharmaceutical companies halting exports due to their drugs being used in executions; hanging in Japan, Iran, Singapore, Syria, and South Sudan; and firing squads in China and North Korea. In the USA, where 195 people have been exonerated from death row since 1973, 23 states have abolished the death penalty, and 24 retain it. Japan faces international pressure to abolish the death penalty and align with global human rights standards, most likely following the US’s pass.


Death Penalty in Japan 日本的死刑制度

International human rights law includes key documents such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR), which Japan ratified in 1979. However, Japan has not ratified the Second Optional Protocol to the ICCPR, which aims to abolish the death penalty, adopted in 1989. International human rights bodies have repeatedly called on Japan to engage the public in discussions about the death penalty and to consider its abolition.


One contentious aspect of Japan’s death penalty practice is the notification process; inmates are informed of their execution only 24 hours in advance, making it psychologically torturous for both the inmates and their families. Additionally, the process for a death row inmate to request a retrial is extremely challenging, contributing to concerns about justice and fairness.


In Japan, the death penalty can be applied in cases of 19 different crimes, but in practice, it is largely reserved for severe offenses such as murder, robbery resulting in murder, and rape leading to death. There are also legal provisions for the death penalty in cases of insurrection or when external forces are conspired with to attack Japan (Article 81 of the Penal Code), although these have never been applied.


Before the final sentencing, death row inmates are held at the Tokyo Detention House, where executions are carried out by hanging, a method that typically causes death by breaking the neck, but can take several minutes for the inmate to fully succumb, considered by many as extremely cruel.


The method does not meet United Nations standards for humane treatment, and between 2011 and 2022, Japan executed approximately 3 to 5 individuals annually. Despite international criticism, a 2019 government survey revealed that approximately 80% of the population supports the death penalty, underscoring its perceived necessity within Japan’s judicial system.


Q&A 问答环节


Q: How are death penalty decisions finalized in Japan, considering the influence of the Minister of Justice and public opinion?

A: In Japan, the Minister of Justice must sign off on executions, but this does not change the nature of the crime. A single murder rarely results in a death sentence unless the case involves extremely severe circumstances or a high likelihood of reoffending. Cultural factors, such as the historical glorification of seppuku, also influence people’s perceptions of the death penalty.



Q: How does the Japanese legal system handle arrests and prosecutions, especially regarding the power of prosecutors?

A: In Japan, the purpose of an arrest is to mitigate risk, but arrests are generally not made lightly. A suspect must be released within 72 hours unless formal charges are pressed. Prosecutors decide whether to indict, and there is no private prosecution. Once an indictment is made, the public tends to believe the prosecutor's case, reflected in the conviction rate of over 99%. Once sentenced, there is no parole for sentences longer than three years, and death penalty cases only allow family and lawyers limited visitation after the verdict is final.




Administrative Scriveners 行政书士

Administrative Scriveners handle a variety of tasks, such as submitting documents to government offices, managing construction and real estate business approvals, and drafting factual proofs like articles of incorporation for new companies. They also deal with rights and obligations documents, such as inheritance division agreements, which are transferred to lawyers if disputes arise. Specifically, they assist foreigners with visa applications, requiring a registration card (pink card) from the Immigration Bureau. Although lawyers can perform these tasks, about 90% of foreign-related business is handled by administrative scriveners. Their companies predominantly handle business management and technical human visas, legal and accounting visas, mainly focusing on the first two. They also assist with applications for permanent residency, requiring over ten years of residence and a stable income.


Judicial Scriveners 司法书士

Judicial Scriveners handle cases where the disputed amount is less than ¥1.4 million and do not proceed to higher courts. They are also responsible for registrations, such as real estate and corporate registrations, which they can perform independently. While their role is extensive, they typically do not handle high court cases and instead, focus on registrations and lower court litigations.


The hierarchy in legal services is often seen as Lawyers > Judicial Scriveners > Administrative Scriveners.


Demographics and Clientele 人口和客户

Over 90% of their clients are Chinese; staff includes people from China, Japan, and Taiwan. In Japan, there are over 23,000 judicial scriveners, and their assistants, who are not qualified, mainly consist of those aspiring to be lawyers or who haven't yet decided or are planning to become lawyers in the future.


Income and Political Connections 收入和政治联系

The average annual income for these three professions is about 4 million yen. They maintain a good relationship with the government, especially with the Liberal Democratic Party


Immigration Policy 移民政策

The internal review standards for immigration policies are often vague, granting considerable discretionary power to the reviewers. These standards are influenced by practical factors, including economic needs and labor market demands. As a result, it is crucial for administrative scriveners to maintain positive relationships with government officials to navigate these ambiguous guidelines effectively. The role of administrative scriveners has become particularly pivotal, as they have monopolized this sector for the past 10-20 years. Despite the potential risks associated with such a monopoly, there have been no significant reports of corruption within this timeframe.





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