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Sabirboyev Sadriddin G‘ayrat o‘g‘li
Toshkent davlat yuridik universiteti magistranti
YAPONIYADA ADVOKATLIK INSTITUTI
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Sabirboyev Sadriddin Gayrat ugli
Master of Tashkent State University of Law
INSTITUTE OF ADVOCACY IN JAPAN
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Сабирбоев Садриддин Гайрат угли
Магистр Ташкентского государственного юридического университета
ИНСТИТУТ АДВОКАТУРЫ В ЯПОНИИ
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Institute of Advocacy in Japan
Annotatsiya
. Maqolada Yaponiyadagi advokatlik kasbining hozirgi holati
haqida umumiy ma’lumot berilgan. Advokatlar federatsiyasiga a’zolik, advokatlarning
malakasi, yuridik amaliyot shakllari, Advokatlar federatsiyasida o‘zini o‘zi boshqarish,
moliyaviy munosabatlari, advokatlarning intizomiy javobgarligi kabi an’anaviy
masalalari bayon qilingan. Shuningdek, Yaponiyada advokatlik faoliyati asosidagi
qonunchilik o‘rganib, advokat bo'lishi talablari ko‘rib chiqilgan. Bundan tashqari,
zamonaviy Yaponiyada advokatlik kasbining shakllanish jarayoni tasvirlangan.
Kalit so‘zlar:
advokatlik, advokat, Yaponiya, advokatlik instituti, advokatlik
kasbi.
Annotation
. The article provides an overview of the current state of the legal
profession in Japan. Traditional issues such as membership in the Federation of
attorneys, qualification of attorneys, forms of legal practice, self-management in the
Federation of attorneys, financial relations, disciplinary responsibility of attorneys are
described. Also, legislation on the basis of the legal profession in Japan has been
studied and considered who and how can become an attorney. In addition, in modern
Japan, the process of formation of the legal profession is described.
Key words:
advocacy, attorney, Japan, institute of advocacy, legal profession.
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Аннотация
. В статье представлен обзор современного состояния
профессии адвоката в Японии. Изложены такие традиционные вопросы, как
членство в Федерации адвокатов, квалификация адвокатов, формы юридической
практики, самоуправление в Федерации адвокатов, финансовые отношения,
дисциплинарная ответственность адвокатов. Также изучалось законодательство,
лежащее в основе адвокатской деятельности в Японии, рассматривалось, кто и
как может стать адвокатом. Кроме того, описан процесс становления профессии
адвоката в современной Японии.
Ключевые слова:
адвокатура, адвокат, Япония, институт адвокатуры,
юридическая профессия.
For a deeper understanding of the role and function of the advocacy in
Uzbekistan, we should refer to the extensive experience of organizing the advocacy in
other countries. An analysis of the legal provisions and practice of the existence and
functioning of advocacy in foreign countries helps to predict the development of the
institution of advocacy in our country, to identify problematic aspects and possible
ways to solve them.
The modern legal system of Japan is mixed and is a set of legal norms, as well
as customs and traditions that have developed under the influence of Chinese
philosophy and culture, in particular Confucianism, and the borrowing of the legal
structures of Romano-Germanic and common law, so the legal culture of this country
arises the greatest interest.
The beginning of the profession of advocacy is associated with the adoption of
the Justice Staff Regulations (Shiho Shokumu Teisei) in 1872. Later, in 1876, a special
act was adopted in Japan, called the Attorney’s Rules (Deigen-nin Kisoku). It defined
the status and powers of the “Daigen-nin”. As stated in the rules, the attorney had a
special status and prerogatives to represent the interests of clients in court, but under
the strict supervision of the prosecutor’s office. In 1893, the first Law on Advocacy
was adopted. It limited the scope of representation of attorneys in court, and also
established a mandatory qualification examination for attorneys and a ban on
registration of attorneys in several district courts. An attorney could practice only in
one district court. Local associations of attorneys were formed, but their activities were
generally subject to the oversight of the chief district prosecutor. In 1933, the Law on
Advocacy was amended, according to which the scope of practice of attorneys was
expanded, restrictions on representation in courts were lifted. However, even after the
adoption of legislative changes, the associations of attorneys were under the control of
the Ministry of Justice of Japan. In 1946, the Constitution of Japan was adopted with
its guiding principles for the protection of fundamental human rights, democracy
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(sovereignty of the people) and pacifism. As a result, there was a historical
transformation of the role of the Japanese Advocacy.
[1]
The Law on Advocacy of
1949, after the adoption of the Constitution of Japan, consolidated the provision that
control over the activities of attorneys passes from the Ministry of Justice to the Japan
Federation of bar associative.
[2]
The Japan Federation of bar associative (hereinafter referred to as the
Federation) is the central div consisting of 52 local associations of attorneys,
individual attorneys, legal professional corporations, registered foreign lawyers and
other members. Lawyers, legal professional corporations and registered foreign
lawyers must be admitted to the Federation and must also be members of local
associations of attorneys. Thus, all attorneys, legal professional corporations and
registered foreign lawyers form a Federation. There are 52 local associations of
attorneys (collegia) in Japan, one for each district court. Local associations of attorneys
are made up of attorneys and legal professional corporations, both their own members
and registered foreign lawyers as foreign special members. Any person admitted to the
practice of law becomes a attorney (Bengoshi) and also a member of the Federation by
being entered on the register of the Federation through the association of attorneys of
which he wishes to be a member. The number of lawyers in Japan has a constant
upward trend.
The principle of autonomy is the basic principle of the Japanese Advocacy.
Autonomy is also preserved for the financial system of the Federation. Financial
independence is an important element of the autonomy of the Federation. The
Federation satisfies its needs through income received from fees, registration fees of
its members, as well as other sources. There are no external restrictions on the use of
Federation funds. However, the bar association maintains the transparency of its
budget. The annual budget of the Federation is approximately 7 billion yen. 90% of the
association’s budget revenue comes from membership fees (14,000 yen per month per
lawyer). In addition, there is a special fee of 5,000 yen per lawyer per year to the
Juvenile Fund (i.e. a fund to cover the costs of providing legal assistance to minors and
criminal suspects), to the Legal Aid Fund (a fund to reimburse the costs of providing
legal support for victims of crimes.
[3]
The federation and local associations of attorneys have a high degree of self-
government. This is expressed in the fact that they are authorized to consider the issues
of passing a qualifying examination, to take disciplinary measures against attorneys.
Their activities and the activities of lawyers are not subject to the supervision of courts,
prosecutors or administrative institutions. Self-government is essential to maintaining
the independence of the legal profession, because attorneys sometimes oppose the
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bodies exercising the powers of the state in order to fulfill their professional duties. For
this reason, associations of attorneys differ from other professional associations in that
they are not governed by any public div. And from a financial point of view, the bar
associations function entirely on the fees and other income of their members.
Therefore, associations of attorneys are specifically responsible for: 1) joining
associations and registering qualified attorneys; 2) supervising attorneys, as well as
taking disciplinary measures against attorneys, if necessary. In addition to the above,
membership in a association of attorneys is mandatory. Under the Law on Advocacy,
unregistered lawyers are not allowed to practice law.
In particular, The Law on Advocacy of Japan (Article 1) defines the mission of
lawyers as “the protection of fundamental human rights and the provision of social
justice”. In other words, the mission of lawyers is to protect the fundamental rights of
the individual and the people, to work for social justice, whether the attorney is in the
courthouse or not, and to provide quality legal services. The Law on Advocacy gives
them the exclusive right to provide legal services, unless otherwise specified in the law.
Representatives of the parties, when appointed by the court, must be qualified attorneys
to argue in court, with the exception of consolidated (magistrate) courts. In addition to
prohibiting non-professionals from providing legal services, the Law also defines
unauthorized practice of law as a criminal activity. Therefore, attorneys who have the
exclusive right to provide legal services assume the responsibility of adequately
representing and serving clients, the people of Japan. After registering a lawyer as a
qualified attorney, he is awarded a lawyer badge, symbolizing justice, freedom and
equality.
To become a qualified legal practitioner, such as a attorney, a judge or
prosecutor must complete law school, pass an examination, and train for a year at the
Law Training and Research Institute of the Supreme Court of Japan. In 2011, Japan
established a different system whereby a candidate must be able to pass the pre-test
even if they did not graduate from law school (in cases where the candidate had
financial difficulties to enter law school, etc.). As a special exception, as stipulated in
the Law on Attorneys, candidates with legal experience, candidates who have worked
in law schools as professors and assistant professors, after passing the qualifying
examination, can become an advocate without a one-year internship, but after
completing a training course, and certified by the Ministry of Justice of Japan.
Attorneys, judges and prosecutors have different statuses that cannot be obtained by
the same person at the same time. To qualify for the status of a attorney, a candidate is
not required to have Japanese citizenship. Once qualified, candidates must be
registered with the Federation in order to practice as a attorney.
[4]
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Over time, there has been a significant expansion of the open field of activity
for attorneys. They have the responsibility to establish and carefully implement the rule
of law in all areas of society. The reforms carried out eliminated the permissive
procedure for the participation of a attorney in commercial activities. Today, it is
enough to follow the notification procedure. In addition, restrictions on the provision
of public services by attorneys have been abolished and are now being liberalized.
Currently, there are provisions whereby lawyers can retain their status when they are
employed by government and legislatures as civil servants for a limited period, which
opens up new opportunities for their work. There is also a system of appointing lawyers
as full-time judges and “part-time judges”, where lawyers retain their status but serve
as judges for a limited time. The place of provision of legal services is no longer limited
to the courtroom.
An increasing number of lawyers offer alternative dispute resolution (ADR)
services, provide preventive legal services, as well as offer advice on corporate law,
provide family lawyer services (from only 66 family lawyers in 2001, in 2013 it
reached 965). Currently, approximately 60% of all law firms consist of one practicing
lawyer. But there is a trend towards an increase in multi-lawyer joint or combined
firms, mostly in urban areas. Over 70% of all lawyers in Japan are now owned by such
joint firms with more than one lawyer.
In November 2004, the Federation decided to replace the Code of Ethics with
a new act called the “The Basic Rules on the Duties of an Attorney”. These rules came
into effect in April 2005. It is very important that lawyers maintain the trust of society
and the general public in order to strengthen the self-government of bar associations.
This requires that every lawyer maintains high ethical standards and provides quality
legal services. The Basic Rules on the Duties of an Attorney attempted to define the
provisions of both a code of ethics and a code of conduct for lawyers, including issues
such as the basis of the professional ethics of a attorney, client relations (obligations of
confidentiality and the prohibition of conflicts of interest), conduct in defense on
criminal matters, legal practice in organizations, joint activities, rules governing
relations with other parties, other lawyers and bar associations.
[5]
In addition, the
Federation approved: 1) Rules for determining the cost of lawyer services and 2) Rules
for the storage and management of funds to streamline disciplinary measures in the
event of conflicts between an attorney and a client. Where attorneys in Japan are not
controlled by the state, they are subject to the disciplinary control of local associations
of attorneys and the Federation. The following actions by a lawyer will result in
disciplinary action: 1) violation by an attorney of the law or the charter of the local
association of attorneys or the charter of the Federation; 2) conduct that undermines
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the authority or confidence of citizens in the association; 3) commission by a attorney
of unlawful actions of a disgraceful nature, both in the course of and outside the
performance of professional duties. The Basic Rules on the Duties of an Attorney set
out the ethical and professional rules for the conduct of attorneys and serve as effective
guidelines for determining whether a lawyer has committed a dishonorable
misconduct. Any person can file a complaint against a attorney with a request to
discipline him/her to the local association of attorneys to which the attorney belongs.
Having considered the history and modern development of the Advocacy in
Japan and Uzbekistan, comparing their structures, we can identify common features of
the legal status of a Attorney, while having slight differences in specific areas of
application, as well as significant differences that can benefit our legislation.
The Rules of professional ethics of attorneys in Uzbekistan establishes rules of
conduct that are mandatory for every lawyer in the exercise of advocacy, based on the
moral criteria and traditions of the legal profession, on international standards and rules
of the legal profession, as well as the grounds and procedure for bringing a lawyer to
responsibility. In Japan, it has been replaced by an act called the “The Basic Rules on
the Duties of an Attorney”.
Significant differences in the practice of conferring the status of a lawyer and
the exercise of his activities in the Japanese Advocacy are:
1.
Ensuring the protection of the rights of citizens only by persons with the
status of a attorney, so that only qualified specialists provide legal assistance.
2.
The advocacy is part of the judiciary. The inclusion of the advocacy as
part of the judiciary allows them to replace judges without losing the status of a lawyer,
which helps to compensate for the shortage of judges and relieve the courts.
3.
Attorneys in Japan have a monopoly on the provision of legal services.
Persons practicing law without the status of a lawyer are subject to criminal liability.
In Uzbekistan and Japan, the main task of a attorneys is to provide qualified
legal assistance. In Uzbekistan, the right of citizens to receive qualified legal assistance
is directly enshrined in Article 116 of the Constitution of Uzbekistan. Namely, a
provision is established according to which “The right to legal assistance shall be
guaranteed at any stage of investigation and legal proceedings.” . However, the
Constitution does not define who should provide this assistance and what status one
must have to do so, in contrast to Japan, where the Law on Advocacy stipulates that
only persons with the status of a lawyer can practice law. So that, the prospects of
implementation on Japanese advocacy law in national legislation of Uzbekistan is more
applicable due to their progressive legislation which establishes a lawyer as the only
authorized person to provide legal assistance.
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References:
[1]
이서영
,. (2009). A Study on the Advocacy System in Japan. Korean Journal
of Gerontological Social Welfare. null. 303-326. 10.21194/kjgsw..44.200906.303.
[2]
Chan, Kaywah. (2011). The Reform of the Profession of Lawyers in Japan
and Its Impact on the Role of Law.
[3]
Basic rules on the duties of practicing attorneys [Электронный ресурс].
URL: http://www.nichibenren.or.jp.
[4]
Watson, Andrew. (1995). Training to be a lawyer in Japan. The Law
Teacher. 29. 64-70. 10.1080/03069400.1995.9992911
[5]
Sarvarian Arman. Professional Ethics at the International Bar. Oxford
University Press, 2013. R. 49.
