Noticeable Judicial Precedent (Criminal Law)

CONSTITUTIONALITY OF LAY JUDGE SYSTEM (JUDGMENT BY GRAND BENCH OF THE SUPREME COURT ON NOVEMBER 16, 2011)

Professor Takuichi KAWAKAMI
(Research Staff, Faculty of Law)
(on 21 March 2012)


     1 Summary of the case

     The person who was prosecuted for a violation of the Stimulant Control Act and Customs Act (the accused) was found guilty in the first trial under the lay judge system. The accused asserted the unconstitutionality of the lay judge system for the following reasons.

     (1) In the Constitution, there are no provisions presuming a trial would be carried out by a judicial body, including the nation as its members other than the judges, and Article 80, paragraph 1, of the Constitution provides that a lower court shall be composed of judges only, so that the judicial body based on the Act regarding the lay judge system, including persons as its members other than the judges, does not fall under the gcourth set forth in the Constitution and is not considered proper judicial procedures. Consequently, the lay judge system violates Article 32; Article 37, paragraph 1; Article 76, paragraph 1; and Article 31 of the Constitution.

     (2) The judges are influenced and bound by the decision of lay judges, so that the lay judge system violates Article 76, paragraph 3, of the Constitution.

     (3) The judicial body of lay judges falls under a special court, which is prohibited by Article 76, paragraph 2, of the Constitution.

     (4) The lay judge system imposes a burden on the persons elected as lay judges without a basis in the Constitution, so it violates Article 18 of the Constitution.

     2 Judgment

      Against this assertion, the Supreme Court in its opinion stated that it shall be “concluded by considering all the basic principles of the reign, every fundamental rule of a criminal trial, the process of construction of the Constitution, including the historical situation at the time of the construction of the Constitution and the regulations related to the Constitution,” whether or not the nation’s participation in the criminal trial is permitted. Furthermore, the Supreme Court indicated in its opinion that when considering Article 31 to Article 39 of the Constitution “every fundamental rule to realize proper criminal trials” and “Chapter VI Judiciary” of the Constitution provides “the exercise of the authority of the judges” in detail, “the Constitution presumed that the judges would undertake responsibilities for criminal trials,” on the other hand, “because democracy had developed from the 18th century to the early 20th century, the basis of the nation in trials was reinforced by the nation’s direct participation in the judiciary, the trend to maintain its justifiability spread and the jury system or citizen-participation system was adopted in most of the democratic Western countries in the middle to the 20th century when the Constitution was established,” it is not “inconsistent” “to strive for reinforcement of a democratic basis” by the nation’s participation “to accomplish the mission of criminal trials,” which “clarifies the facts based on the evidence and secures individual rights and the order of society while guaranteeing the human rights provided by the Constitution.” Additionally, “it is fully possible to harmonize” “the nation’s participation in the judiciary and all principles to realize proper criminal trials,” so “there is no reason to consider the nation’s participation in the judiciary is prohibited by the Constitution in general, and the constitutionality of the system regarding the nation’s participation in the judiciary shall be decided by the fact that the system established in concrete form infringes the very principles of proper criminal trials.”

     With that, in reference to assertion (1) of the accused, the Supreme Court stated the assertion of unconstitutionality had no basis as the lay judge system would not impede the maintenance of the principles of criminal trials provided by the Constitution, according to the procedures to the election and resignation of lay judges and the authorities of the judges and lay judges provided by the Act regarding the lay judge system. In reference to assertion (2), it was stated even though there would be a case where the judges should arrive at a conclusion different from their opinion, the result is to be bound by constitutional law, and as far as the Constitution permits the nation’s participation in the judiciary, there would be no reason that the major opinions of the judges composing the judicial body must be the conclusion of trials at all times, and it should not be considered as not permitted by the Constitution even though there would be the possibility of a different conclusion from the one made by judges only. Furthermore, in reference to assertion (3), it was stated that the judicial body including the lay judges would not be fall under the “special court” obviously because the appeals to the high court and the Supreme Court were permitted. Last, in reference to assertion (4), it was stated that it could not be denied that this system would cause a certain burden on the nation, but the system would not fall under the “toil” obviously because the system is flexible and the nation may decline when elected as a lay judge and the measure to reduce the economic burden by paying travel expenses and daily allowances was implemented.

     3 Prospects of the lay judge system

     In conclusion, the Supreme Court stated the prospects for the lay judge system as follows. The criminal trials in our country had been borne by judges and the other judicial officers only until the lay judge system was introduced, but “the high expertise realized by the judicial officers only makes the nation’s understanding difficult, and it may be alienated from the nation’s sense” “in the area related very closely to the nations daily life, and the nation’s understanding and support are indispensable in a criminal trial, while consideration in this regard is very important.” “The lay judge system aims to reinforce the basis of the nation, and it is also considered to realize such criminal trials where mutual understanding is deepened by the usual exchange between the viewpoints and sense of the nations and the expertise of the judicial officers, and the respective merits are well utilized. It takes a rather long time to fully achieve the aimh but “its process also has great importance to the judiciary based on the nation”, and “the accumulation of the endeavor standing on such long term viewpoint may realize the system for the nation’s participation in the judiciary, which is most suitable for the actual circumstances of our country.”