Terrie's Take 431 -- lay judges, ebiz news from Japan

Sun Jul 29 23:16:12 JST 2007

* * * * * * * * *  T E R R I E 'S   T A K E  * * * * * * *
A weekly roundup of news & information from Terrie Lloyd.
(http://www.terrie.com)

General Edition Sunday, July 29, 2007 Issue No. 431

+++ INDEX

- What's new
- News
- Candidate roundup/Vacancies
- Upcoming events
- Corrections/Feedback
- News credits

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+++ WHAT'S NEW

If you're interested in legal reform at all, you may have
been following the saga of the government introducing a new
"lay judge" system into Japan. Due to kick into play May
2009, the new system was promulgated by the Koizumi
administration in 2004. It introduces some of the aspects
of the American jury system, but retains much of Japan's
traditional values and processes.

The new lay system has high ideals: namely that it aims to
make the Japanese public more aware of their judiciary
system and to be involved in it, and to force the judiciary
to bring itself back in line with mainstream public
thinking. As a result, it is inevitable that many legal
minds and politicians alike are trying hard to slow down or
stop the new system. We thought it would be interesting to
speculate why.

The latest player to come out against the lay judge system
is Osamu Ogawa, the Chairman of the Saitama Bar
Association. He actually makes some good points. In
February he said that in a worst case scenario, the new
system will cause defendants to receive capital punishment
based on a majority vote. He reasons that this means those
voting against a decision of guilty must have had doubts
about the case and thus the defendant could be going to
the gallows without a conclusive finding. At present,
Japanese judges pass a verdict with unanimity -- i.e., they
are supposed to be 100% sure whether the suspect did it or
not.

He also points out that it may be hard to find lay judge
candidates who fully understand the principles of the law.
For example, a defendant may follow their lawyer's advice
and pursue their right to remain silent -- however, in a
social (rather than legal) context this will usually mean
that the person is being uncooperative and Ogawa thinks
this will stimulate a harsher response from lay judges.

Ogawa's comments go to the heart of the judicial system
and how it reflects the country's values. One has to ask:
is the Japanese inquisitorial judicial system better and
fairer or is the jury-based adversorial system of the UK
and the USA better? Before our readers say, "Well, of
course the western system is better -- there's more minds
applied to the task," it's important to know that the
3-judge inquisitorial system is also being widely used in
western countries, such as France, Germany, and Holland
-- to good effect.

So which really is best?

[Continued below...]

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[...Article continues]

The basis of the adversarial system used in the UK and USA
is that defendants argue the points of evidence and rely on
the skill of their advocates (lawyers) to defend their
position against the accusers. The direction, tone, and
content of the case is refereed by a judge, whose role it
is to ascertain the truth of the case based upon the
performance of both sides.

The jury system also lets you be judged by a group of your
peers and thus their value systems are statistically more
likely to coincide with yours if you are normal. The
flip-side to this is that in the inquisitorial system,
having just 3 judges do the job leaves the defendant
exposed to being judged by people with unusually high moral
values and that statistically any decisions made will be
more biased.

As business people, we find the analogy of comparing the
US jury system to a board of directors in an organization
to be quite useful. In this scenario, the management
(the judges) have to listen to the recommendations of the
board. That's good, right?

The problem, however, is that theory doesn't always
translate into practice. The reality is that juries most
definitely are NOT comprised of experts in the field
of the case at hand -- as directors would have to be in
order to advise on business, and thus without technical
skills, the jurors are essentially left to vote on their
emotions.

The inquisitorial system used in Japan and other countries,
on the other hand, is based on the belief that the judges
themselves are well trained at detecting and ferreting out
the truth, and that they can call upon various experts to
help them reach a conclusion. Judges the world over are
rigorously trained and in Japan in particular, the system
carefully inculcates them with certain (conservative) views
that are supposed to represent the values of society.
Whether they really do reflect societal standards is of
course debatable, but it is fair to say that this type of
system produces a reliable and knowable theocratic output
-- i.e., the religion of respect for authority.

So, on the one hand we have democracy, inefficiency, and a
system that seems to rely more on acting and trickery than
on plan facts. On the other we have rigidity, a set of
judicial values that don't reflect those of the nation, and
a susceptibility to manipulation from the inside.

As a guilty man, we assume you'd want the adversorial
system, because with a good enough advocate you can find
technicalities or inconsistencies in the evidence that
might get you off the hook. However, as an innocent man,
you'd want the truth to come out and therefore an
inquisitorial system would work better, providing it stuck
to the facts.

Thus, considering the strengths and weaknesses of both
systems, we think the Japanese idea to harmonize the two
systems is actually quite a good one. The three career
judges will be required to open up their value system to
review by 6 people from outside their closed world, and
will be less susceptible to phone calls from their "sensei"
or some paymaster telling them how to decide.

Here at Japan Inc., over the years of doing interviews we
have had occasion to talk to a number of ex-judges (divorce
and criminal) who have confided that as juniors there were
times when they didn't agree with the head judge, but were
reluctant to speak up. Bringing in 6 outsiders will be the
equivalent to bringing in 6 non-executive directors into a
company's 9-person board: they will have nothing to lose
by questioning the decision-making, and the process may
will become a lot fairer as a result. At least it will
encourage discussion among the 3 professional judges
themselves.

The only problem that now seems to remain, is one of
finding enough people who have the confidence to
participate in the lay judge system. A February 2007 poll
by the Cabinet Office found that 80% of people interviewed
did not want to sit as lay judges and didn't want the
responsibility of having to send someone to the gallows.

But then, we suspect that most people in the USA and UK
feel the same way about jury duty, too.

Rather, since the new system will be mandatory, once a
citizen with ordinary values realizes the importance of the
task before them, we believe that they will rise to the
occasion and do their best. Over time, the system will
prove its worth and word will get out that being a lay
judge is inconvenient but important, and thereafter support
will grow.

At least, we hope this is the case -- because in 2004 the
government estimated that at least 25,000 people will be
called up to serve as lay judges annually. That would be a
lot of angry citizens if it didn't work out!

...The information janitors/

***------------------------****-------------------------***

------------------- HK Advisor Notice ---------------------

>From Mr. D. Wells (HK Business Advisor):

"I take this opportunity to thank all those who I was able
to meet and discuss corporate and other matters in Japan on
my last trip in June. As a result of increasing business, I
will be returning to Tokyo in October, 2007, and while
there I would be happy to meet with readers who wish to
discuss their Hong Kong strategies with me. As is my
practice, there is no charge for the initial meeting and
all discussions are completely confidential."

Those wishing to reserve time with me, can reach me at:
dwells95 at gmail.com.
-----------------------------------------------------------

+++ NEWS

- Fujifilm Q2 profit soars
- Even Japanese funds are knocked back
- Trade surplus up a massive 53% in June
- US subprime mess to have low impact on Japan banks
- CPI probably dropped in June

-> Fujifilm Q2 profit soars

Fujifilm Holdings has announced that its April-June quarter
profits soared 800% to JPY40.9bn, indicating that the
company has recovered strongly from the failure of its film
business and subsequent restructuring. The company says the
profits came from polarized film for LCDs, photosensitive
plates for printers, cell phone camera lenses, color
copiers, and a variety of other optics and imagery
businesses. **Ed: Great to see FF pull back from the brink,
per our coverage in TT376,
www.japaninc.typepad.com/terries_take/2006/05/index.html,
back in May 2006.*** (Source: TT commentary from
nikkei.co.jp, Jul 28, 2007)

http://www.nni.nikkei.co.jp/AC/TNKS/Nni20070727D27JFA01.htm

-> Even Japanese funds are knocked back

Japan's largest real estate fund, DaVinci Advisors, was
knocked back in its takeover bid by shareholders of
building leasing company TOC last week. DaVinci made a
JPY103bn (US$850m) offer, representing a 64% premium over
TOC's trading price. Many thought the premium was high
enough that the bid that would lead to Japan's first
successful hostile takeover of a publicly listed firm.
However, DaVinci failed to take into consideration the
determination of the founding family, who bought more
shares in the company. (Source: TT commentary from
cnbc.com, Jul 24, 2007)

http://www.cnbc.com/id/19919843

-> Trade surplus up a massive 53% in June

Japan Inc. is still going strong and the Ministry of
Finance has announced that the nation's June trade
surplus jumped a massive 53% over the same period last
year, to JPY1.23trn (US$10.2bn). Contributing to the surge
were increased exports to the USA as well as solid growth
all around Asia. Exports rose 16.2% to JPY7.28trn, while
imports rose at a slower pace of 10.7% to JPY6.056trn. A
Lehman economist said that he feels the weak yen is a key
factor in the slower import growth. (Source: TT commentary
from marketwatch.com, Jul 24, 2007)

http://tinyurl.com/376nb8

-> US subprime mess to have low impact on Japan banks

The head of the Japanese Banker's Association has said that
he doesn't believe the impact of the subprime meltdown
going on in the USA at present will have much direct impact
on Japanese banks. His rationale was that Japanese banks
had only JPY1trn (US$8.4bn) invested in such securities, a
small percentage of their overall foreign investments.
(Source: TT commentary from nikkei.co.jp, Jul 24, 2007)

http://www.nni.nikkei.co.jp/AC/TNKS/Nni20070724D24JF703.htm

-> CPI probably dropped in June

While the Bank of Japan is expected to raise the nation's
base interest rate to 0.75% in August, due to a supposed
recovery in the Japanese economy, others are not so sure
that there really is a sustainable recovery, as witnessed
by the persistent deflation in the marketplace. A Bloomberg
survey of major bank economists has found that the
estimates are that for the 5th month in a row, the national
Consumer Price Index (CPI) dropped, this time by around
0.1%. Expectations had been that the CPI would go up,
because of increases in fuel prices, paper, and food.
However, it seems that these have been offset by price cuts
for telecommunications and electronic goods. (Source: TT
commentary from bloomberg.com, Jul 25, 2007)

http://tinyurl.com/39s7da

NOTE: Broken links
Many online news sources remove their articles after just a
few days of posting them, thus breaking our links -- we
apologize for the inconvenience.

***------------------------****-------------------------***

--------------- Earthquake Relief Appeal ------------------

Niigata, Japan

The Japan Emergency Team, Japan`s only non-government
disaster relief team, is still assisting in the recovery
effort for people in the Wajima area of Ishikawa-ken.

The 6.7 Magnitude earthquake killed 10 and injured many
others, and their needs are still high. You can help by
donating either cash or goods, such as the following:

Water, Canned and Instant Food, Rice, Emergency
Medical Kits, Towels, Soap, Camping Supplies and
Sleeping Bags (no blankets needed), and Used
Laptop Computers

Send to:
Operation Niigata
Box 65
Tokyo, Japan 106-8691

Cash donations can be made to:
www.jhelp.com, or by Postal Furikae 00160 7 162438, Nihon
Kinkyu Enjotai (The Japan Emergency Team)
-----------------------------------------------------------

+++ CANDIDATE ROUND UP/VACANCIES

=> LINC Japan Ltd., an affiliate of the LINC Media group,
is actively marketing the following positions for market
entry customers setting up in Japan, as well as other
employers of bilinguals.

** HIGHLIGHTED POSITION

A leading foreign software solutions company with a global
base of operations is looking for a business development
person to help a grow some new accounts for a large sales
team that has become "stagnant". The person must be a
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solutions as a means of selling to new customers.

This will be a largely independent position and thus will
require someone with strong drive, self-motivation, and
imagination. Once new projects are successfully matured
into a sales contract, the delivery and subsequent
maintenance of the account will move back to the existing
team.

The successful candidate will have proven sales experience,
be bilingual, and be able to demonstrate a high level of
personal networking in Japan. The remuneration will be
around JPY12m base and a significant commission component
for successful closure of deals. Overall salary
expectations should be in the high-teens.

Candidates can contact keiko.watanabe at lincjapan.net for
more information.

POSITIONS VACANT

* Data services Support Manager, bilingual -- JPY10-12m
* Software co., Support Manager, bilingual -- JPY10-12m
* Enterprise software salesperson, bilingual -- JPY10-12m
* Oracle, open source SQL DBA, bilingual -- JPY6-10m
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* IT sales trainee, bilingual -- JPY4-5m

CANDIDATES AVAILABLE

* Sales Manager, Media/Research
Japanese female, late 30's, with strong background in
financial media with blue-chip US publishing firm. Recently
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mid- to senior-sales position in publishing, data, research,
media, or Internet company. Very strong interpersonal skills,
strongly bilingual, quick thinker, excellent presentation.
position in infrastructure, data center, storage, etc.
Available Aug-Sept, target JPY10-12m base.

* Senior Storage Engineer, Support Manager or Presales
Mid-30's Japanese male, data storage engineering background
with blue-chip Japanese company looking to change roles and
move into presales or management. Flawless English,
engaging personality, great technology credentials. Looking
for foreign vendor position. Available September, can do
interviews now. Target salary JPY14m plus incentives.

Interested Japanese or foreign candidates may e-mail
resumes to: terrie at lincjapan.net or
keiko.watanabe at lincjapan.net
-----------------------------------------------------------

+++ UPCOMING EVENTS/ANNOUNCEMENTS

No events this week.

______________________________________________________
IT events announcements are priced at JPY50,000 per week.
For more information, contact sales at japaninc.com

***------------------------****-------------------------***

+++ CORRECTIONS/FEEDBACK

In this section we run comments and corrections submitted
by readers. We encourage you to spot our mistakes and
amplify our points, by email, to editors at terrie.com.

No feedback this week.

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END

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+++ ABOUT US

STAFF
Written by: Terrie Lloyd (terrie.lloyd at japaninc.com)

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