LAW338D.001 Japanese Law
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COURSE INFORMATIONCourse Title Course Code Number Credit ValueJapanese Law LAW338D.001 3 PREREQUISITESThere are no pre-requisite courses for taking this course. But the students are encouraged to bring their own knowledge of their business law and engage in comparative analysis of Japanese Law. No special knowledge on Japanese society or no language capacity on Japanese language is required.
CONTACTSCourse Instructor(s) Contact Details Office Location Office HoursProf. Shigenori MatsuiProfessor of LawUniversity of British Columbia, Peter A. Allard School of Law1822 East Mall, Vancouver, BC V6T 1Z1Phone 604-822-5592 e-mail firstname.lastname@example.orgLaw 354 I will be coming to my office through Tuesday to Thursday. You can just drop by and ask any questions any time. If you need an appointment, please feel free to ask for an appointment by e-mail. You can get access to me by zoom or skype anytime.
COURSE STRUCTURESeminar: Wednesday 14:00 to 17:00 Room 113
The seminar starts with the brief historical review of Japanese law and brief examination of the Japanese society. It then examines the basic Japanese legal system, including the court system, attorneys and judges, legal education system, dispute resolution system, including the civil litigation process and ADR, and some characteristics of the Japanese society on law and legal disputes. The seminar then moves on to the basic foundation of business law, including the constitutional government structure, constitutional protection of economic liberties, contract, tort, consumer protection, and labor relationship. Then the seminar examines the business law and business regulation, starting from the examination of business organization, corporate governance, shareholder’ rights and derivative action, merger and acquisition, anti-trust regulation and protection of intellectual property rights. Finally, the seminar will examine the administrative business regulation and punishment on business crimes. Throughout all these examinations, the seminar will prompt the students to compare Japan with Canada or the students’ home countries and attempt to find what are so unique to Japan and whether there is anything the students can draw lessons from Japan. This seminar will expand the student’s knowledge and encourage all students to look beyond their borders to learn business law from foreign country where law and practice is strikingly different from Canada. Participants are requested to read the relevant pages of the textbook or indicated pages of the underlined articles beforehand and come to the class. The other materials listed here are only for students who would like to have much deeper knowledge in the topic. Active participation in the class discussion is strongly encouraged. Some parts of the classes will be co-taught together with professor Takashi Shirouzu of Chiba University, who will be visiting us as visiting scholar during 2022-23.
SCHEDULE OF TOPICSCourse Outline (tentative, subject to change)
Participants can read the relevant pages of the textbook or underlined article indicated for each section
The following books will be cited as indicated:KENNETH L. PORT, GERALD PAUL MCALINN & SALIL MEHRA, COMPARATIVE LAW: LAW AND THE LEGAL PROCESS IN JAPAN (3rd edition Carolina Academic Press 2015) (PMM)JAPANESE CONSTITUTIONAL LAW 123-149 (Percy R. Luney, Jr. & Kazuyuki Takahashi eds. Tokyo: University of Tokyo Press 1993) JAPANESE CONSTITUTIONAL LAWLAW IN JAPAN: A TURNING POINT (Daniel H. Foote ed. Seattle: Washington University Press 2007) TURING POINTLaw Review articles should be available in the legal material database in the law library. I added hyperlink only to those which are not available through law library database. I would appreciate if you notice any hyperlink no longer active. I will look into other available materials for assignment.
1 LEGAL PROCESS AND JUDICIAL PROCESSClass 1 Sept. 7 01 Introduction: Why Business Law in Japan Matters? PMM1-26*I will explain the basic purpose of the course and give brief outline of the course. We will then learn why the business law in Japan matters to Canadian students.01-1 Arthur T. von Mehren, The Rise of Transnational Legal Practice and the Task of Comparative Law, 75 Tul. L. Rev. 1215 (2001)01-2 Kenneth L. Port, The Case for Teaching Japanese Law at American Law School, 43 DePaul L. Rev. 643 (1994)01-3 Daniel H. Foote, The Roles of Comparative Law: Inaugural Lecture for the Dan Fenno Henderson Professorship in East Asian Legal Studies, 73 Wash. L. Rev. 25 (1998)
02 History of Business Law in Japan PMM 27—51* We will briefly examine the historical development of law in Japan, specially paying attention to development of business law.02-1 Carl Steenstrup, New Knowledge Concerning Japan’s Legal System before 1868, Acquired from Japanese Sources by Western Writers since 1963, in TURNING POINT at 702-2 Kenzo Takayanagi, A Century of Innovation: The Development of Japanese Law -- 1868-1961, in LAW IN JAPAN: THE LEGAL ORDER IN A CHANGING SOCIETY 6-12,15-23, 27-33 (von Mehren ed. Harvard University Press 1963)02-3 Nobuhiko Kasumi, Criminal Trials in the Early Meiji Era—With Particular Reference to the Ugaki/Shirei System, in TURNING POINT at 3402-4 Alfred C. Oppler, The Reform of Japan’s Legal and Judicial System under the Occupation, in Legal Reform of Japan during the Allied Occupation 1 (Washington Law Review Special Reprint 1977)02-5 David A. Funk, Traditional Japanese Jurisprudence: Justifying Loyalty and Law, 17 U.L. Rev. 171 (1990)02-6 Hiroshi Oda, The History of Modern Japanese Law in Japanese Law, http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780199232185.001.1/acprof-9780199232185-chapter-212-7 Yoshiro Miwa & Mark Ramseyer, The Good Occupation, 8 Wash. U. Global Stud. L. Rev. 363 (2009), https://openscholarship.wustl.edu/law_globalstudies/vol8/iss2/13
Class 2 Spt. 14 rescheduled
Sept. 20 make-up class 12:30-14:0003 Judicial System: How Business Law Disputes Are Litigated PMM 51-64 * We will examine the basic judicial system in Japan. 03-1 Supreme Court of Japan, Overview of the Judicial System in Japan, https://www.courts.go.jp/english/judicial_sys/index.html03-2 Percy Luney, The Judiciary: Its Organization and Status in the Parliamentary System, in JAPANESE CONSTITUTIONAL LAW at 123-149, also available on 53 Law & Contemp. Probs. 135 (Winter 1990), http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=4029&context=lcp&sei-redir=1&referer=http%3A%2F%2Fsearch.yahoo.co.jp%2Fsearch%3Fp%3Dluney%2Bjudiciary%2Bits%2Borganization%2Band%2Bstatus%26search.x%3D1%26fr%3Dtop_ga1_sa%26tid%3Dtop_ga1_sa%26ei%3DUTF-8%26aq%3D%26oq%3D#search=%22luney%20judiciary%20its%20organization%20status%2203-3 Ichiro Kitamura, The Judiciary in Contemporary Society: Japan, 25 Case Western Reserve Journal of International Law 263 (1993)
Class 3 Sept. 2104 Judges: Who Will Adjudicate the business Law Disputes PMM 247-71* We will see who the judges are and what the general attitude of judges in adjudicating legal disputes is. We will pay special attention to the role played by the judges in Japan.04-1 Takaaki Hattori, The Role of the Supreme Court of Japan, in the Field of Judicial Administration, 60 Washington Law Review 69-86 (1984)04-2 Setsuo Miyazawa, Administrative Control of Japanese Judges, in LAW AND TECHNOLOGY IN THE PACIFIC COMMUNITY 263-81 (Philip S.C. Lewis ed., Boulder: Westview Press 1994)04-3 J. MARK RAMSEYER & FRANCES MCCALL ROSENBLUTH, JAPAN’S POLITICAL MARKETPLACE (Harvard University Press 1993)04-4 J. Mark Ramseyer, The Puzzling (In)dependence of Courts: A Comparative Approach, 23 J. Legal Stud. 721 (1994)04-5 John O. Haley, Judicial Independence in Japan Revisited, 25 Law in Japan 1 (1995)04-6 John O. Haley, The Japanese Judiciary: Maintaining Integrity, Autonomy, and the Public Trust, in TURNING POINT at 9904-5 Frank Upham, Review Essay: Political Lackeys or Faithful Public Servants? Two Views of the Japanese Judiciary, 30 Law & Soc. Inquiry 421 (2005)
05 Lawyers and Prosecutors: Who Will Represent Business Clients PMM 113-44 *We will examine why Japan can manage the society with such a small number of lawyers. The special attention is also paid to the role of foreign lawyers in Japan.05-1 Masanobu Kato, The Role of Law and Lawyers in Japan and the United States, 1987 BUY Law Review 627-97 05-2 John Haley, The New Regulatory Regime for Foreign Lawyers in Japan: An Escape from Freedom, 5 UCLA Pacific Basin Law Journal 1-15 (1986)05-3 John O. Haley, Redefining the Scope of Practice under Japan’s New Regime for Regulating Foreign Lawyers, 21 Law in Japan 18 (1988)05-4 Sabrina Shizue McKenna, Japanese Judicial Reform: Proposal for Judicial Reform in Japan: An Overview, 2 Asian-Pacific L. & Pol'y J. 121 (2001)
Class 4 Sept. 2806 Legal Education: How Lawyers Are Educated and Trained PMM 144-63 * We will examine the traditional legal education system in Japan and how it was reformed in 2004 by the introduction of law school system.06-1 Edward Chen, The National Law Examination of Japan, 39 J. Legal Education 1-25 (1989)06-2 Setsuo Miyazawa with Hiroshi Otsuka, Legal Education in Japan: Legal Education and the Reproduction of the Elite in Japan, 1 Asian-Pacific L. & Pol'y J. 2 (2000)06-3 Dan Rosen, Reform in Japanese Legal Education: Schooling Lawyers, 2 Asian-Pacific L. & Pol'y J. 66 (2001)06-4 George Shumann, Beyond Litigation: Legal Education Reform in Japan and What Japan’s New Lawyers Will Do, 13 U. Miami Int'l & Comp. L. Rev. 475 (2006)06-5 Kahei Rokumoto, Legal Education, in TURNING POINT 19006-6 Shigenori Matsui, Turbulence Ahead: The Future of Law Schools in Japan, 62 Journal of Legal Education 3 (2012)
07 Judicial Process: What Is the Business Law Dispute Litigation Procedure PMM 329-78 * We will examine the basic process of civil litigation. Especially, we will learn what kind of role the civil litigation plays in the Japanese society.07-1 The Supreme Court of Japan, Outline of Civil Litigation in Japan, http://www.courts.go.jp/english/proceedings/civil_suit_index.html 07-2 Harold See, The Judiciary and Dispute Resolution in Japan; A Survey, 10 Fla. St. U.L. Rev. 339 (1982)07-3 Carl Goodman, Japan's New Civil Procedure Code: Has it Fostered a Rule of Law Dispute Resolution Mechanism?, 29 Brooklyn J. Int'l L. 511 (2004)07-4 Yasuhei Taniguchi, The Development of an Adversary System in Japanese Civil Procedure, in TURNING POINT at 80 Sept. 30 National Day for Truth and Reconciliation observed —- University closed
Class 5Oct. 508 Alternative Dispute Resolution: Huge Availability of Alternatives PMM 379-413 * We will learn the important role of alternative dispute resolution in the Japanese society. 08-1 Lynn Berat, The Role of Conciliation in the Japanese Legal System, 8 The American University Journal of International Law and Policy 133 (1992)08-2 Max Bolstad, Learning from Japan: The Case for Increased Use of Apology in Mediation, 48 Clev. St. L. Rev. 545 (2000)08-2 Mitchell Stephens, I'm Sorry: Exploring the Reasons Behind the Differing Roles of Apology in American and Japanese Civil Cases, 14 Widener Law Review 185 (2008)08-3 Tammy Bryant, Family Models, Family Dispute Resolution and Family Law in Japan, 14 UCLA Pacific Basin Law Journal 1 (1995)
09 Law and Society: Why Japan Can Manage Its Society and Business PMM 77-113 * We will examine what kind of role the law plays in Japan. Special focus is paid on the relationship between law and the society.09-1 Takeyoshi Kawashima, Dispute Resolution in Contemporary Japan, in LAW IN JAPAN 41, 43-48 (von Mehren ed. Harvard University Press 1963)09-2 Takeyoshi, Kawashima, The Legal Consciousness of Contract in Japan, 7 Law in Japan 1 (1974)(Translated by Charles R. Stevens)09-3 Setsuo Miyazawa, Taking Kawashima Seriously: A Review of Japanese Research on Japanese Legal Consciousness and Disputing Behavior, 21 Law & Society Review 219-41 (1987)09-4 John Haley, The Myth of Reluctant Litigant, 4 J. of Japanese Studies 359-390 (1978)09-5 John Haley, Sheathing the Sword of Justice in Japan: An Essay on Law without Sanctions, 8 J. of Japanese Studies 265-281 (1982)09-6 Mark Ramseyer & Minoru Nakazato, The Reluctant Litigant: Settlement Amounts and Verdicts Rates in Japan, 18 J. of Legal Studies 263-290 (1989)09-7 Danile H. Foote, Resolution of Traffic Accident Disputes and Judicial Activism in Japan, 25 Law in Japan 19 (1995) 09-8 Carl F. Goodman, The Somewhat Less Reluctant Litigant: Japan's Changing View Towards Civil Litigation, 32 Law & Pol'y Int'l Bus. 769 (2001)09-9 Tom Ginsburg and Glenn Hoetker, The Unreluctant Litigant? An Empirical Analysis of Japan's Turn to Litigation, 35 J. Legal Stud. 31 (2006)09-10 Eric Feldman, Law, Culture, and Conflict: Disputes Resolution in Postwar Japan, in TURNING POINT at 5009-11 Masayuki Yoshida, The Reluctant Japanese Litigant: A “New” Assessment, Electronic Journal of Contemporary Japanese Studies (2003)09-12 Mark Ramseyer & Eric Radmusen, Comparative Litigation Rate, Harvard Law School Discussion Paper No. 681 (2010)
Oct. 10 Thanks giving Day observed – University closed
2 FOUNDATION FOR BUSINESS LAW IN JAPANClass 6Oct. 1210 Doing Business -- Constitutional Foundation: Structure of the Government (Constitutional Law) PMM 66-76, 165-92 * We will learn the basic structure of government and how legislation is drafted and enacted through the legislature. We also see the pacifism clause in the Constitution and its relevance to business law.10-1 Kazuyuki Takahashi, Contemporary Democracy in a Parliamentary System, in JAPANESE CONSTITUTIONAL LAW at 87-107, 53 Law & Contemp. Prob. 105 (1990) 10-2 Mutsuo Nakamura & Teruki Tsunemoto, The Legislative Process: Outline and Actors, in FIVE DECADES OF CONSTITUTIONALISM IN JAPANESE SOCIETY 195-219 (Yoichi Higuchi ed. Tokyo: University of Tokyo Press 2001)10-3 Michio Muramatssu and Ellis S. Krauss, Bureaucrats and Politicians in Policymaking: The Case of Japan, 78 American Political Science Review 126 (1984)10-4 Kazuyuki Takahashi, Ongoing Changes in the Infrastructure of a Constitutional System: From Bureaucracy to Democracy, in TURNING POINT, at 237
11 Doing Business -- Constitutional Protection of Economic Rights (Constitutional Law) PMM 283-94, * We will learn to what extent economic freedom is protected under the Japanese Constitution. Even though economic freedom is broadly protected in Japan, the courts are reluctant to review the constitutionality of economic regulation. We will talk why the Japanese judiciary has developed such a conservative jurisprudence and the possibility of revitalizing the power of judicial review.11-1 Mutsuo Nakamura, Freedom of Economic Activities and the Right to Property, in JAPANESE CONSTITUTIONAL LAW at 255-67, 53 Law & Contemp. Prob. 1 (Spring 1990).11-2 Shigenori Matsui, Lochner v. New York in Japan: Protecting Economic Liberties in a Country Governed by Bureaucrats, in LAW AND TECHNOLOGY IN THE PACIFIC COMMUNITY 199 (Philip S.C. Lewis ed. Boulder, Westview Press 1994)11-3 Lawrence W. Beer and C. G. Weeramantry, Human Rights in Japan: Some Protections and Problems, 1:3 Universal Human Rights 1 (1979), https://doi.org/10.2307/761835 https://www.jstor.org/stable/76183511-4 Shigenori Matsui, Fundamental Human Rights and ‘Traditional Japanese Values’: Constitutional Amendment and Vision of the Japanese Society, 13 Asian J. Comparative L. 59 (2018), https://www.cambridge.org/core/journals/asian-journal-of-comparative-law/article/fundamental-human-rights-and-traditional-japanese-values-constitutional-amendment-and-vision-of-the-japanese-society/C3CD7177248931D96EE302F434257007
Class 7Oct. 1912 Doing Business -- Contract (Contract Law) PMM 64-66, 415-62 * We will examine the basic rules of civil law. The special attention is paid to the law of contract. We will see come of the unique characteristics of the contract law in Japan.12-1 Hiroshi Wagatsuma & Arthur Rosett, Cultural Attitudes towards Contract Law: Japan and United States Compared, 2 UCLA Pacific Basin L J 76-97 (1983)12-2 Zentaro Kitagawa, Use and Non-use of Contracts in Japanese Business relations: A Comparative Analysis, in JAPAN: ECONOMIC SUCCESS AND LEGAL SYSTEM 145-165 (Herald Bau ed. Berlin: Walter de Gruyter 1997)12-3 Michael K. Young, Masanobu Kato, Akira Fujimoto, Essay: Japanese Attitudes towards Contracts: An Empirical Wrinkle in the Debate, 34 Geo. Wash. Int'l L. Rev. 789 (2003)12-4 Takashi Uchida & Veronica Taylor, Japan’s “Era of Contract,” in TURNING POINT, at 454
13 Doing Business -- Tort (Tort Law) PMM 705-35 * We will see the basic framework of tort law in Japan. Special attention is paid to medical malpractice suit and environment litigation. We will learn how the Japanese courts came to hold companies and hospital liable for their conducts. Moreover, we will see the special role the apology plays in Japan.13-1 Hiroshi Wagatsuma & Arthur Rosett, The Implications of Apology: Law and Culture in Japan and the United States, 20 Law & Society Rev 461-198 (1986)13-2 Takao Tanase, The Management of Disputes; Automobile Accident Compensation in Japan, 24 Law & Society Review 651-691 (1990)13-3 Koichiro Fujikura, Litigation, Administrative Relief, and Political Settlement for Pollution Victim Compensation: Minamata Mercury Poisoning after Fifty years, in TURNING POINT, at 38413-4 Robert B. Leflar, Medical Error, Deception, Self-Critical Analysis, and Law’s Impact: A Comparative Examination, in TURNING POINT at 404
Class 8Oct. 2614 Doing Business -- Product Liability Law and Consumer Protection Law (Consumer Protection Law)* We will examine the development of products liability rule in Japan. Even though there is the Products Liability Act, that imposes liability on producers, there is not much products liability litigation in Japan. We will see the reasons why.14-1 Susan H. Easton, Note: The Path for Japan?: An Examination of Product Liability Laws in the United States, the United Kingdom, and Japan, 23 B.C. Int'l & Comp. L. Rev. 311 (2000) 14-2 Jason F. Cohen, Note: The Japanese Product Liability Law: Sending a Pro-consumer Tsunami through Japan’s Corporate and Judicial Worlds, 21 Fordham Int'l L.J. 108 (1997)14-3 Nancy L. Young, Comment: Japan's New Products Liability Law: Increased Protection for Consumers, 18 Loy. L.A. Int'l & Comp. L.J. 893 (1996) 14-4 Anita Bernstein & Paul Fanning, "Weightier than a Mountain": Duty, Hierarchy, and the Consumer in Japan, 29 Vand. J. Transnat'l L. 45 (1996) 14-5 Andrew Marcuse, Comment: Why Japan’s New Products Liability Law Isn’t, 5 Pac. Rim L. & Pol'y 365 (1996) 14-6 9 Wendy A. Green, Comment: Japan's New Product Liability Law: Making Strides or Business as Usual?, 9 Transnat'l Law. 543 (1996)14-7 Luke Nottage, The Present and Future of Product Liability Dispute Resolution in Japan, 27 Wm. Mitchell L. Rev. 215 (2000)14-8 Mark A. Behrens & Daniel H. Raddock, Japan's New Product Liability Law: The Citadel of Strict Liability Falls, but Access to Recovery is Limited by Formidable Barriers, 16 U. Pa. J. Int'l Bus. L. 669 (1995-1996)
15 Doing Business – Employment Practices and Labor Law (Labor Law) PMM 463-513 * We will examine the labor contract and labor law in Japan. We will see that most of the Japanese companies are not willing to fire employees and there are elaborate employment protection laws. Yet, in reality, the Japanese workers are forced to work overtime without adequate compensation and some of the workers die for overwork.15-1 Daniel H. Foote, Judicial Creation of Norms in Japanese Labor Law: Activism in Service of –Stability?, 43 UCLA L. Rev. 635 (1996)15-2 Ryuichi Yamakawa, Labor Law Reform in Japan: A Response to Recent Socio-Economic Changes, 49 Am. J. Comp. L. 627 (2001) 15-3 Kaiulani Eileen Sumi Kidani, Comment: Japanese Corporate Warriors in Pursuit of a Legal Remedy: The Story of Karoshi, or "Death From Overwork" in Japan, 21 Hawaii L. Rev. 169 (1999) 15-4 Ryuich Yamakawa, From Security to Mobility?: Changing Aspects of Japanese Dismissal Law, in TURNING POINT at 48315-5 Ronald J. Gilson & Mark J. Roe, Lifetime Employment: Labor Peace and the Evolution of Japanese Corporate Governance, 99 Colum. L. Rev. 508 (1999)15-6 Robbi Louise Miller, The Quiet Revolution: Japanese Women Working Around the Law, 26 Harv. Women’s l. J. 163 (2003)
Class 9Nov. 216 Corporation -- Corporate Organization (Corporation Law)* We will learn the basic framework of corporation law. First, we will learn the basic process of establishing corporations.16-1 Ronald J. Gilson, Reflections in a Distant Mirror: Japanese Corporate Governance through American Eyes, 1998 Colum. Bus. L. Rev. 20316-2 Zenichi Shishido, Japanese Corporate Governance: The Hidden Problems of Corporate Law and Their Solutions, 25 Det. J. Corp. L. 189 (2000)16-3 Zenichi Shishido, Reform in Japanese Corporate Law and Corporate Governance: Current Changes in Historical Perspective, 49 Am. J. Comp. L. 653 (2001) 16-4 Mark West, Information, Institutions, and Extortion in Japan and the United States: Making Sense of Sokaiya Racketeers, 93 Nw. U. L. Rev. 767 (1999)16-5 Yoshiro Miwa & Mark Ramseyer, The Myth of the Main Bank and Corporate Governance, 27 Law & Soc. Inquiry 401 (2002)16-6 Curtis J. Milhaupt, On the (Fleeting) Existence of the Main Bank System and other Japanese economic Institutions, 27 Law & Soc. Inquiry 425 (2002)16-7 Dan Puchniak, Reverse Main Bank Rescue in the Lost Decade: Proof that Unique Institutional Incentives Drive Japanese Corporate Governance, 16 Pac. Rom. L . & Pol’y J. 13 (2007)
17 Corporation -- Corporate Governance (Corporation Law)* We will learn some of the peculiar characteristics of corporate governance in Japan.17-1 Curtis J. Milhaupt, Creative Norm Destruction: The Evolution of Nonlegal Rules in Japanese Corporate Governance, 149 U. Pa. L. Rev. 2083 (2001)17-2 Curtis J. Milhaupt, A Relational Theory of Japanese Corporate Governance: Contract, Culture, and Rule of Law, 37 Harv. Int'l L.J. 3 (1996)*17-3 Ronald J. Gilson & Curtis J. Milhaupt, Choice as Regulatory Reform: The Case of Japanese Corporate Governance, 53 Am. J. Comp. L. 343 (2005) 17-4 Hideki Kanda & Curtis J. Milhaupt, Reexamining Legal Transplants: The Director’s Fiduciary Duty in Japanese Corporate Law, in Turning Point at 43717-5 Dan W. Puchniak, The 2002 Reform of the Management of Large Corporations in Japan: A Race to Somewhere?, 5 Aust. J. Asian L. 42 (2003)17-6 Dan Puchniak, The Japanization of American Corporate Governance? Evidence of the Never-Ending History for Corporate Law, in 9 Asian-Pacific Law & Policy (2007)17-7 Mark West, The Puzzling Divergence of Corporate Law; Evidence and Explanations from Japan and the United States, 150 U. Pa. L. rev. 527 (2001)17-7 R. Daniel Kelemen & Eric C. Sibitt, The Americanization of Japanese Law, 23 U. Pa. J. Int’l Econ. L. 269 (2002) Nov. 9-11 mid-term fall breakNov. 11 remembrance day- university closed
Class 10 Nov. 1618 Corporation – Shareholders’ Rights and Derivative Actions (Corporation Law) * We will learn the system of derivative suits, especially focusing how it works and how it is effective in controlling the corporate executives.18-1 Mark D. West, The Pricing of Shareholder Derivative Actions in Japan and the United States, 88 Nw. U.L. Rev. 1436 (1994)18-2 Bruce E. Aronson, Reconsidering the Importance of Law in Japanese Corporate Governance: Evidence from the Daiwa Bank Shareholder Derivative Case, 36 Cornell Int'l L.J. 11 (2003)18-3 Mitsuru Misawa, Shareholders' Action and Director's Responsibility in Japan, 24 Penn St. Int'l L. Rev. 1 (2005)18-4 Mark West, Why Shareholders Sue: The Evidence from Japan, 30 J. Legal Stud. 351 (2001)18-5 Dan W. Puchniak & Masafumi Nakahigashi, Japan’s Love for Derivative Actions: Irrational Behavior and Non-Economic Motives as rational Explanations for Shareholder Litigation, 45 Vanderbilt Journal of Transnational Law 1 (2012)
19 Corporation -- Merger and Acquisition (Corporation Law)* We will see the regulation and control of merger and acquisition. The special focus is paid on the possibility of hostile takeover. We will learn that the hostile takeover is extremely difficult in Japan.19-1 J.Mark Ramseyer, Takeovers in Japan: Opportunism, Ideology and Corporate Control, 35 UCLA L. Rev. 1 (1987)19-2 Curtis J. Milhaupt, In the Shadow of Delaware?: The Rise of Hostile Takovers in Japan, 105 Colum. L. Rev. 2171 (2005)
Class 11Nov. 2320 Corporation and Doing Business -- Anti-trust Regulations (Competition Law)* We will see the framework of anti-trust regulation in Japan. We will learn that there are many “dango” and trade restrictions yet the enforcement of anti-trust law is often difficult. We will also see what kind of role the government has played to facilitate the trade restrictions.20-1 Harry First & Tadashi Shiraishi, Concentrated Power: The Paradox of Antitrust in Japan, in TURNING POINT at 52120-2 Ronald J. Gilson & Mark J. Roe, Understanding the Japanese Keiretsu: Overlaps between Corporate Governance and Industrial Organization, 102 Yale L. J. 871 (1993)20-3 Harry First, Antitrust in Japan: The Original Intent, 9 Pac. Rim L. & Pol'y J. 1 (2000)20-4 Harry First, Antitrust Enforcement in Japan, 64 Antitrust L.J. 137 (1995-1996)
21 Corporation and Business – Protection of Intellectual Property Rights (Intellectual Property Rights Law) PMM 557-641 * We will examine how intellectual property is protected in Japan. We will focus on the copyright protection.21-1 Dennis S. Karjala & Keiji Sugiyama, Fundamental Concepts in Japanese and American Copyright Law, 36 Am. J. Comp. L. 613 (1988)21-2 Salil Mehra, Copyright and Comics in Japan: Does Law Explain Why All the Cartoons My Kid Watches Are Japanese Imports?, 55 Rutgers L. Rev. 155 (2002)21-3 Salil K. Mehra, Copyright, Control, and Comics: Japanese Battles Over Downstream Limits on Content, 56 Rutgers L. Rev. 181 (2003)21-4 Daniel J. Gervais, Transmissions of Music on the Internet: An Analysis of the Copyright Laws of Canada, France, Germany, Japan, the United Kingdom, and the United States, 34 Vand. J. Transnat’l L. 1363, 1382-85 (2001)21-5 Hisanari Harry Tanaka, Post-Napster: Peer-to-Peer File Sharing Systems Current and Future Issues on Secondary Liability under Copyright Laws in the United States and Japan, 22 Loy. L.A. Ent. L. Rev. 37, 64-69 (2001).21-6 Shigenori Matsui, Intellectual High Court in Japan, NEW COURTS IN ASIA (Andrew Harding & Penelope (Pip) Nicholson eds. 2010).
Class 12Nov. 3022 Corporation and Business – Government Regulation of Business (Administrative Law)* We will see the framework of government regulation of business and how the company can challenge the exercise of governmental power. We will learn how the administrative agencies regulate the business conducts through administrative guidance and how difficult it is to challenge the administrative exercise of power.22-1 Michael Young, Administrative Guidance in the Courts: A Case Study in Doctrinal Adaptation, 17 Law in Japan 120-151 (1984)22-2 Michael Young, Judicial Review of Administrative Guidance: Governmentally Encouraged Consensual Dispute Resolution in Japan, 84 Colum. L. Rev. 923 (1984)22-3 Shoukitsu Tanakadate, A Summary of Limitations on Administrative Adjudication under the Japanese Constitution, 18 Law in Japan 108-117 (1986)22-4 David Boling, Access to Government-Held Information in Japan: Citizens' "Right to Know" Bows to the Bureaucracy, 34 Stan. J Int'l L. 1 (1998)22-5 Ken Duck, Comment: Now That the Fog Has Lifted: The Impact of Japan’s Administrative Procedures Law on the Regulation of Industry and Market Governance, 19 Fordham Int'l L.J. 1686 (1996)22-6 Katsuya Uga, Development of the Concepts of Transparency and Accountability in Japanese Administrative Law, in TURNING POINT at 27622-7 Tom Ginsburg, The Politics of Transparency in Japanese Administrative Law, in TURNING POINT at 304
This year, we will not cover the following subject23 Corporation and Business – Government Regulation for Environmental Protection (Environment Protection Law)*We will examine the tort liability of the company that polluted the environment to cause health dames to the local residents and the regulatory system for environmental protection.23-1 Lara Fowler, Comment: From Technical Fix to Regulatory Mix: Japan’s New Environmental Law, 12 Pac. Rim L. & Pol’y 441 (2003)23-2 Shiro Kawashima, A Survey of Environmental Law and Policy in Japan, 20 N.C.J. Int'l L. & Com. Reg. 231 (1995)23-3 Robert Kondrat, Punishing and Preventing Pollution in Japan: Is American-Style Criminal Enforcement the Solution?, 9 Pac. Rim L. & Pol'y J. 379 (2000)23-4 Andrew Schatz, Tale of Three Signatories: Learning from the European Union, Japanese, and Canadian Kyoto Experiences in Crafting a Superior United States Climate Change Regime, 70 U. Pitt. L. Rev. 593 (2008-2009)23-5 Eric Feldman, Fukushima: Catastrophe, Compensation, and Justice in Japan, 62 DePaul L. Rev. 335 (2012-2013)23-6 Lincoln Davies, Beyond Fukushima: Disasters, Nuclear Energy, and Energy Law, 2011 Brigham Young University Law Review 1937 (2011)
This year, we will not cover the following topic24 Corporation and Business -- Insolvency Law * We will examine the insolvency law in Japan. There are various kind of insolvency procedure, including bankruptcy law, civil rehabilitation law and corporate reorganization law.24-1 Junichi Matsushita, Japan's Personal Insolvency Law, 42 Texas International Law Journal 765-771 (2007)24-2 Junichi Matsushita, Comprehensive Reform of Japanese Personal Insolvency Law, 7 Theoretical Inquiries in Law 555-64 (2006)24-3 Kent Anderson, Japanese Insolvency Law after a Decade of Reform, 43 Canadian Business Law Journal 2-27 (2006)24-4 Hideo Horikoshi, Japan's New Corporate Reorganization, 38 International Lawyer 855-865 (2004)Kent Anderson, Small Businesses Reorganizations: An Examination of Japan's Civil Rehabilitation Act Considering U.S. Policy Implications and Foreign Creditor's Practical Interests, 75 Am. Bankr. L.J. 355 (2001)
25 Business Crime and Criminal Law (Criminal Law) PMM 643-704 * We will see how the government imposes criminal punishment on business crimes. We will learn that, if prosecuted, it is almost certain for the courts to convict the defendant. 25-1 John O. Haley, Policemen and Prosecutors: Crime without Punishment, in AUTHORITY WITHOUT POWER: LAW AND THE JAPANESE PARADOX 121 (Oxford University Press 1991)25-2 J. Mark Ramseyer and Eric B. Rasmusen, Why is the Japanese Conviction Rate So High?, 30 J. Legal Stud. 53 (2001)25-3 Koya Matsuo, The Development of Criminal law in Japan since 1961, in TURNING POINT at 31225-4 Joseph Hoffmann, Globalization of Criminal Law, in TURNING POINT at 33425-5 Daniel Foote, The Benevolent Paternalism of Japanese Criminal Justice, 80 Cal. L. Rev. 317 (1992)25-6 David T. Johnson, Criminal Justice in Japan, in TURNING POINT at 343Matthew J. Wilson, Japan’s New Criminal Jury System: In Need of Moe Transparency, More Access and More Time, 33 Fordham Int’l L. J. 48723-7 Shigenori Matsui, Justice for the Accused or Justice for Victims?: The Protection of Victims’ Rights in Japan, 13 Asian-Pacific Law and Policy Journal 54 (2011)
*End of the term
Alternatives 26 Administrative Regulation—Case of Economic Regulation* We will see the actual operation of economic regulation. The special attention is paid to the regulation of large-scale stores. This case study is designed to show the actual mechanism of economic regulation in Japan.25-1 Frank Upham, Legal Formality and Industrial Policy, in LAW AND SOCIAL CHANGE IN POSTWAR JAPAN 166-204 (Cambridge: Harvard University Press 1987)25-2 Frank K. Upham, Privatizing Regulation of the Large-Scale Retail Stores Law, in Gary D. Allison & Yasunori Sone, eds. POLITICAL DYNAMICS IN CONTEMPORARY JAPAN 264 (Cornell University Press 1993) 25-3 Jean Heilman Grier, Japan’s Regulation of Large Retail Stores: Political Demands versus Economic Interests, 22 U. Pa. J. Int'l Econ. L. 1 (2001)
This course is designed to introduce the Japanese Business Law. Even though Japan is the third largest economy in the world and Japanese companies are doing business all over the world, there are many unique characteristics in business practices and business law in Japan. The course will provide the students with the opportunity to learn about the basic framework of business law and its peculiar characteristics. Topics to be covered include historical development of law, legal process, judicial system, lawyers, legal education, relationship between law and society, and major issues in business law, including constitutional foundation, constitutional protection of economic freedoms, property, contract, tort, product liability, labor law, basic framework of corporation law, corporate governance, derivative actions, merger and acquisition, anti-trust regulation, security regulation, administrative regulation on business activities, and business crimes and punishment.
Seminar structure: This seminar meets once a week on Wednesday, 14:00 to 17:00 with a mid-time 15-minutes break in room 113. Basically, in each class, we will cover two topics.
The seminar is designed to provide basic information of Japanese Law on business to participants and allow them to compare Canadian Law (or law of the home country for the exchange students) with Japanese Law. The participants are encouraged to consider the possible backgrounds for the differences and find out whether there is anything we can learn from Japanese Law.
IT IS EXPECTED THAT ALL OF THE STUDENTS WILL READ THE ASSIGNMENT FOR EACH CLASS AND COME TO THE CLASS FOR DISCUSSION. ACTIVE PARTICIPATION IN THE CLASS DISCUSSION IS STRONGLY ENCOURAGED.
textbookKENNETH L. PORT, GERALD PAUL MCALINN & SALIL MEHRA, COMPARATIVE LAW: LAW AND THE LEGAL PROCESS IN JAPAN (3rd edition Carolina Academic Press 2015) (PMM) (useful but not mandatory)or you can also read indicated pages of the underlined articles instead of the textbook. All these articles are available in the library or on-line through Law Library. Other articles listed are for your reference only.
Other useful materials HIROSHI ODA, JAPANESE LAW (3rd edition, Oxford: Oxford University Press 2009) CURTIS J. MILHAUPT, J. MARK RAMSEYER, MARK D. WEST, THE JAPANESE LEGAL SYSTEM (New York, Foundation Press 2006) SHIGENORI MATSUI, THE CONSTITUTION OF JAPAN: A CONTEXTUAL ANALYSIS (Oxford: Hart Publishing 2010)Shigenori Matsui, Business Law in Japan, in Pitman B. Potter & Ljiljana Buikovic, eds, A Guide to Business Law in Asia (Lexis-Nexis 2008), at 143-202
ASSESSMENTS OF LEARNINGClass participation 30% and final assignment 70%. Students will be evaluated based upon the class participation and final essay paper. The class performance will be assigned 30% of total evaluation and the final essay paper will be assigned 70% of total evaluation.
Class participation: Class participation mark is evaluated based upon the class attendance, degree of the interests and the degree of active participation in the class discussion. Each student is required to attend the class after reading assigned materials and is encouraged to participate in the class discussions. Regular attendance and active participation are especially important to provide you with deeper knowledge and understanding. During the classroom discussions, we will pick up many specific issues, including new issues and new judgments, and discuss how we should resolve the cases. If you miss too many classes, you will not be eligible to submit your final paper.
Final paper: With respect to final paper, each student should choose a particular topic from the areas covered by this course (or any Japanese legal issue will be acceptable) and is expected to submit the outline of the paper by the end of October (you can just send an e-mail outlining your paper) and then write a substantial paper (roughly 15 pages—-this is merely a suggestion and is not the minimum or maximum limit) by the end of submission deadline (4:00 p.m. of the final day of the examination, Dec. 22, 2022). Please send your paper with your email to me. But please make sure to keep your original copy with you just in case and make sure to receive my reception e-mail.You do not have to pick up the topic discussed in the class. You can pick up any subject that might be relevant to our course. I will be happy to advise you on your choice of topic and you should talk with me before finalizing your outline. The paper will be evaluated based on the choice of topic, the extent of the research, the organization and structure of analysis, the analytical skill, the writing skill and the overall persuasiveness. I don’t care what format you would choose, what citation method or citation style you would prefer to use or how long you would choose to write. All I will care is the substance of your research, writing and analysis.
After separately evaluating class participation mark and paper mark, I will add these marks to produce tentative final mark. Then, in order to comply with the law school’s grading policy, sometimes I will have to add final adjustment to reach the final marks to be submitted. For the law school’s grading policy, see http://www.allard.ubc.ca/sites/www.allard.ubc.ca/files/uploads/registration/grades_dist_1819.pdf. For the law school policy on late submission, see http://www.allard.ubc.ca/sites/www.allard.ubc.ca/files/uploads/JD/penalties_for_late_assignments.pdf#search=%27UBC+law+school+late+submission%27.For the law school’s academic concession policy (including deferral of exam or extension of deadline of submission of paper), see http://www.allard.ubc.ca/sites/www.allard.ubc.ca/files/uploads/registration/grades_dist_1819.pdf. We understand that some of the students might be overwhelmed by the COVID-19 pandemic or extra stressed by the sudden change in life-style. The law school will be very flexible and is willing to consider all kinds of difficulties to grant academic concession. Please talk to the student adviser or student office.
UNIVERSITY POLICIESUBC provides resources to support student learning and to maintain healthy lifestyles but recognizes that sometimes crises arise and so there are additional resources to access including those for survivors of sexual violence. UBC values respect for the person and ideas of all members of the academic community. Harassment and discrimination are not tolerated nor is suppression of academic freedom. UBC provides appropriate accommodation for students with disabilities and for religious observances. UBC values academic honesty and students are expected to acknowledge the ideas generated by others and to uphold the highest academic standards in all of their actions.Details of the policies and how to access support are available on the UBC Senate website.
COPYRIGHTAll reading materials can be found in the textbook or in the library online. No power-point files or video-recordings uploaded will be allowed to be published or distributed.