Die Janusköpfigkeit des OGH als Revisions- und Verfassungsgericht. Gegenwartsprobleme und Zukunftsperspektiven

Abstract

The article considers the Japanese Supreme Court’s (SC) double function as a constitutional court on the one hand and as the final instance of appeal on the other. The SC furthermore functions as a kind of judicial administration of all Japanese courts. First, the court’s historical development from the Imperial Court is discussed, whereby emphasis is placed on the reception of foreign laws, initially from Europe during the 19^th century and later from the USA. Thereafter the organization of the SC including the long-standing practice of the judges’ appointment following certain patterns and selection from specific occupational groups is analysed. For this, the article makes use of reports of former SC judges’ experiences, which have been published in greater numbers since the judicial reforms in 1999. The author then discusses certain aspects of the procedural praxis of the SC with a critical eye, especially the practice of dissenting opinions. In contrast to the practice of the German constitutional court, dissenting decisions in the SC are made and published more often and are widely accepted by Japanese practitioners and academics alike.

      Based on statistics of judicial procedure, the article then deals with the question whether the SC properly fulfils both of its functions. The results indicate that the SC does not fulfil its role as constitutional court in an adequate manner. The author sees this as cause to urge reforms of the system. Other problems are the SC judges’ lack of specialized knowledge, who are not assigned according to their expertise, and the continued work overload of the SC judges. A consequence of the latter is the high rate of action dismissals without reasons being given (known as three-and-a-half-line orders), and the low rate of oral hearings.

      Basis for the author’s reform suggestions is a discussion during the 1950s in which the SC’s modernization was debated. Although a draft reform law was submitted in 1957 it was unsuccessful. According to this reform plan, changes of the SC’s structure and distribution of tasks were suggested, so that the number of judges was to be increased and judges be assigned to either the Grand or a Petty Bench on a fixed basis. The author advocates to take the reform plans from 1957 once more into consideration.

(The Editors)