The Legal Consciousness of the Japanese Revisited

An Analysis of Current Developments in Traffic Accident Disputes in Japan

Abstract

This paper explores the prevalence of out-of-court settlements in Japanese traffic accident disputes. The low litigation rate has sparked a discussion about the “legal consciousness” of the Japanese people, which was initiated by KAWASHIMA. He argued that the Japanese tend to favor extrajudicial, informal methods of dispute resolution in order to maintain social harmony. However, scholars such as HALEY, RAMSEYER, TANASE, and FOOTE have challenged this cultural thesis, pointing to institutional factors such as Japan’s limited number of attorneys and judges, the standardization of damages, and political decisions favoring alternative dispute resolution (ADR) mechanisms. This paper examines the continued relevance of these factors.
Through 25 expert interviews of 32 individuals, including attorneys, insurance employees, judges, management figures at dispute resolution bodies, and professors, the paper identifies key factors contributing to out-of-court settlement. These include the standardization of damages, the availability of ADR mechanisms, and the role of automobile insurance, which streamlines claims and reduces the need for court intervention. While institutional factors are significant, the paper also acknowledges the influence of cultural factors, as identified by KAWASHIMA.
Additionally, the paper examines the reasons behind the increased litigation rate in traffic accident cases since 2005, which is attributed to shifts in both cultural and institutional dynamics, including the increased prevalence of legal expenses insurance, greater access to the judicial system, and expanding internet usage, which has bolstered legal consciousness. In order to address the growing number of lawsuits, judges have implemented a table-based hearing to facilitate settlements, which exemplifies judicial ingenuity. The use of artificial intelligence may provide further relief for judges.