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Sessions

3224 Gender/Women in the Legal Profession IV: Gender and the Judicial Behavior of the Japanese Judiciary

WG Comparative Studies of Legal Professions

Room: B2.02

 

There is possibility that the constitution of the panel or the organization of social movement has something to do with the decisions.

 

Second, we look at the gender-bias in the rulings and how the reasoning justify the bias.

The constitution of Japan clearly prohibits sex discrimination and the Supreme Court in some points positively has created judicial doctrines which lead the elimination of discrimination. But, there are still tacit norms or motives which preserve and promote gender discrimination or prejudice.

 

Akiko Tejima: How the Criminal Liability in a DV Case is Judged(Considered) in Japan: a Glimpse of a Gender Bias

She analyze the sentencing of the recent criminal domestic violence cases consider the cause of variation of sentencing.

 

Keiko Sawa: On a Supreme Court Decision on the Same Surname System : What Can Be Expected of Gender Diversity of Judiciary in Japan

She analyze the 2015 Grand Bench case which issued the same surname rule as constitutional.

 

Kayo Minamino: Disputing the indirect discrimination against women in Japan: gender bias in the court’s fact finding and consideration of scientific evidence

How do Justices evaluate gender equality in recent labor law cases?

She will take up a typical case on the indirect discrimination and examine how the courts have failed to consider “scientific evidence” based on researches in several academic experts and preferred their “common sense” on working women pervasive in the Japanese society

 

Chihara Watanabe: Gender and Science: Institutional and discourse analysis of the recent Supreme Court rulings of family law cases

I will focus on the use of scientific evidence or scientific fact in the Supreme Court rulings. The supreme court issued some rulings which decide parental relationship against biological fact. I try to look on the strategic judicial behavior which substantively nullify the doctrines of family law. (Session organized by Chihara Watanabe).

 

Chair: Chihara Watanabe | Ritsumeikan University

Akiko Tejima | Kyoto Women's University

How the Criminal Liability in a DV Case is Judged in Japan: a Glimpse of a Gender Bias.

 

Abstract

 

Since Anti-DV Act which was enacted in 2001, Japanese society has learned what is domestic-violence and how it give serious damage to victims. Judges also have gained knowledge and understanding about domestic violence these days. But courts still make judgements which are not consistent with the result of many researches about the dynamics of domestic violence among intimate relationships. This presentation will focus the courts judgements about cases which are related to gender-based violence such as domestic violence and examine how courts judge the weight of responsibility of aggressors.
In 2007, a man wraps his fingers around his wife, broke her ribs and gave her other serious damage by his violent behavior. He repeated such behavior to her, so he was prosecuted for injury. The courts admitted his responsibility but considered the fact that he is a prominent doctor and has contributed to community for years when they made the decision on sentencing. Japanese courts have judged the responsibility of defendants in DV cases relatively; if a defendant is “a good citizen”, has high social status; used to take his family on a trip in holiday season, etc., or if a plaintiff is not good at doing housework, not gentle or cheerful enough for her husband to be able to relax in his home, the courts often reduced the penalty of the perpetrator. Why courts --- in other words, the judges----weigh the violence against various circumstances? Can violence be compensated with something else?
Not only violence in DV case, violence itself seems to have been judged relatively so far in the legal system in Japan, such as extenuation in criminal law and comparative fault in tort law. This presentation will review the factors which the courts consider to judge the weight of the responsibility of violence and try to answer the question how we should estimate the responsibility of batterer in DV case. 

Kayo Minamino | Kyoto Women's University

Disputing the indirect discrimination against women in Japan: gender bias in the court’s fact finding and consideration of scientific evidence

 

Abstract

 

In Japan, women’s labor participation rate still draws M curve and more than 60% of women give up their career as full time regular worker after having their first baby even 22 years after the ratification of CEDAW and enactment of Equal employment opportunity laws.
This paper will try to show how gender biases against women works in the process of judicial fact finding and consideration of scientific evidence on the working women’s situations focusing on a recent employment discrimination case in Japan. There has been so many employment discrimination cases since the ratification of CEDAW and the enactment of Equal Employment Opportunity Law, hereinafter referred to as EEOL. Before 2007 revision of EEOL, there has been no explicit clause in any labor legislations to ban the indirect discrimination based on gender. The revision was reply to the repeated concluding comments of the CEDAW hearing on the one hand, and to some of the judgments of the courts which found some employment practices as discriminative. The courts as a whole, however, do not seem to have changed their way of decision making; they have established no standards or rules to consistently find indirect discrimination practices. This paper will take up a typical case on the indirect discrimination and examine how the courts have failed to consider “scientific evidence” based on researches in several academic experts and preferred their “common sense” on working women pervasive in the Japanese society. It will be argued that gender bias is working on the cognitive level and even the judges, who are no doubt elite in the Japanese society, cannot be immune, so that gender training is required to the judiciary who are to pursue the justice and fairness in the society.

Chihara Watanabe | Ritsumeikan University

Gender and Science: Institutional and discourse analysis of the recent Supreme Court rulings of family law cases

 

Abstract

 

Recently, Supreme Court of Japan made rulings of family law cases one after another and have attracted attention. This paper will examine the institutional background of these Supreme Court activism concerning family law and try to analyze the discourse of the rulings.
Traditionally, Supreme Court has been said to be very passive and rarely ruled laws unconstitutional. On the other hand, the Supreme Court leaded in creating innovative norms through case law, especially in family law and labor laws, to which gender issues are relevant. Recent rulings of family law can be considered on the traditional line, but have two notable features from the point of view of gender equality and the science.
Since Justice System Reform Council recommended Judicial System should act as one of three Governance Institutions, the Supreme Court has been a little more active than before and ruled two articles of family law unconstitutional. It reflected recent change of the Supreme Court. One was to illegitimate children inheritance-discrimination unconstitutional (4 Sep.9 2013) and the other was an article of civil law which demanded women should wait 6months to remarry after divorce unconstitutional (16 Dec 2015) . I will try to depict institutional and personnel factors behind these new trends of the Judiciary.
Among other rulings, I will pick up 4 cases. 3 cases are related with assistant reproduction technology and one with DNA typed analysis. The rulings of these cases do not create new norms but stick to old case laws in new context. They found that legal parenthood is different from biological facts. If a person cannot be biologically parent, he or she is legally parent. It seems against the tradition of Japanese case law, which respect social consensus or scientific evidence. As assistant reproduction technology develops, people tend to think that biological parenthood is more important than legal parenthood.
How can we realize these rulings from gender-related point of view? These rulings could be understood as conservative because they do not change the family law but hold precedent. But, they rulings substantially create new norms in new context. I will explore the intension and philosophy behind the rulings from feminism theory.

Keiko Sawa | Kyoto Women's University

On a Supreme Court Decision on the Same Surname System : What Can Be Expected of Gender Diversity of Judiciary in Japan

 

Abstract

 

Japan is one of countries with a civil law that requires a married couple to have the same surname which is identical with either a former surname of a husband or that of a wife. A choice of a couple’s surname can be made freely by agreement according to the civil law, but in fact, 96% of the married couples choose men's former surnames. Obviously there seems to be an indirect discrimination, but the Supreme Court made a decision in 2015 that the civil law forcing married couples to use the same surname is constitutional by insisting that a surname is a name of a family which is a natural and basic unit of Japanese society and it emphasized that the surname has a role of presenting that one belongs to a family and also emphasized the significance of being a family member. 

Five judges out of 15 Supreme Court Judges ruled it unconstitutional and three out of five were female judges. Using the opinions of these three female judges as a clue, this presentation tries to show what is expected and what can be expected of female judges of Japanese judiciary.

In Japan, the number of newly adopted female judges has been maintained at a high level than before under the governmental plans to make women with leadership 30% by 2020.  So in the adoption of judges, unlike before, it seems that women's advancement is on the way. In addition, the importance of gender law education is being pointed out, and there are some expectations for the progress of gender perspectives of judges.
Taking up the opinions of female judges and analyzing the significance of their opinions in the Japanese context, the possibilities and the changes of the increase of the female judges can bring in the Japanese context will be be argued.

 

 

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