The Washington International Law Journal publishes global perspectives on international legal issues while fostering the development of student analysis. The Journal’s professional articles and student comments cover diverse legal and geographical terrain and offer novel approaches to international, foreign, and comparative law. To further cross-cultural dialogue on foreign law, the Journal publishes English-language translations of Chinese, Korean, and Japanese legal materials.

Volume 27 | Number 1 | December 2017

East Asian Court Reform on Trial: Introduction to the Symposium

Setsuo Miyazawa
27 WASH. INT’L L.J. 1
December 2017

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Diversification of the Japanese Judiciary 

Daniel H. Foote
27 WASH. INT’L L.J. 7
December 2017

Japan has a career judiciary. The Courts Act of 1947 provides that judges may be appointed from among prosecutors, attorneys, and law professors. In practice, however, the vast majority of judges come from a fourth category, “assistant judges,” who are appointed directly upon completion of the legal training program and typically serve through retirement. This continues a career tradition that dates back to the late nineteenth century. For nearly that long, the Japanese bar has been advocating that the career system should be abolished and that a substantial portion of the judiciary, if not all judges, should be drawn from among experienced attorneys. The Justice System Reform Council (“JSRC”), which met from 1999 through 2001, strongly endorsed the importance of diversification of the judiciary, and set forth a two-pronged proposal for achieving that goal: 1) establishing a system through which assistant judges would “leave their status as judges” and “gather diversified experience” outside the judiciary and 2) promoting increased hiring of experienced attorneys and others to the bench. Utilizing the framework for analyzing court reform set forth by Malcolm Feeley in his classic work, Court Reform on Trial: Why Simple Solutions Fail, this Article examines the various efforts at diversification of the Japanese judiciary, with a special focus on the most recent set of reforms.

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Assessing the Direct and Indirect Impact of Citizen Participation in Serious Criminal Trials in Japan

Matthew J. Wilson
27 WASH. INT’L L.J. 75
December 2017

In Japan, the idea of citizen involvement in the judicial process has gained greater acceptance over the past decade. On May 21, 2009, Japan implemented its saiban’in seido or “lay judge system” as part of monumental legal reforms designed to encourage civic engagement, enhance transparency, and provide greater access to the justice system. About eight years before this historic day, a special governmental committee known as the Justice System Reform Council (“JSRC”) set forth wide-sweeping recommendations for revamping Japan’s judicial system. The underlying goals targeted three pillars of fundamental reform, namely: (i) a justice system that is “easier to use, easier to understand, and more reliable;” (ii) a legal profession “rich both in quality and quantity;” and (iii) a popular base in which citizens’ trust in the legal system is enhanced through their participation in legal proceedings. The JSRC viewed the judicial system as an engine capable of propelling both economic and societal change. It believed that lay judge participation could function as a piston in this engine by helping shift Japan away from centralized control and heavy bureaucratic regulation. Lay participation was consistent with the perceived need for Japanese citizens to not only break away from excessive dependency on the government, but also to develop greater civic consciousness, become more actively involved in public affairs, and better integrate community values into the justice system.

From the outset, the creation and implementation of the lay judge system have been strongly controlled by the status quo such that direct impact on the outcome of individual criminal trials has been minimized. However, the value of this monumental court reform in Japan has been educational, indirect, and real. This Article examines the direct impact of the lay judge system, describes several of the indirect benefits of the new system, and then explores the potential of the system going forward. This analysis is done through the lens of Malcolm Feeley’s 1983 work entitled Court Reform on Trial.

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Victim Participation in Japan

Erik Herber
27 WASH. INT’L L.J. 119
December 2017

In 2008, a victim participation system was introduced in Japan, which enabled crime victims to participate in criminal proceedings. One of the goals of the system was to correct the wrong done to victims due to their lack of previous involvement, thus giving crime victims what they “naturally desire.” Employing Malcolm Feeley’s analytical framework to make sense of planned legal change, this Article shows that the new system emerged against the background of a combination of international trends: victim activism and public perceptions of crime getting out of hand. It finds that for reasons that are not well understood, only a small percentage of victims have made use of the new system. When it comes to the other courtroom players, judges and prosecutors are generally committed to accommodating participating victims, both formally and in practice. The new system further limits defense lawyers’ room to maneuver, while also presenting new opportunities for lawyers to represent victims and champion their rights. This Article concludes that the new system expresses a continued commitment to protecting victims’ rights and interests, and that the new system contributes to remedying victims’ exclusion from their case, even if the extent to which it succeeds in giving victims what they desire remains uncertain.

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Introduction of Videotaping of Interrogations and the Lessons of the Imaichi Case: A Case of Conventional Criminal Justice Policy-Making in Japan

Setsuo Miyazawa & Mari Hirayama
27 WASH. INT’L L.J. 149
December 2017

Malcolm M. Feeley examined cases of criminal justice reform in the United States, where reforms can be conceived and initiated in a very open structure, but implementation of the introduced reforms can be handed over to highly fragmented implementers. The story of mandatory videotaping of interrogations and accompanying changes in Japan demonstrates the reform process at the other end of the scale, where the members of the criminal justice establishment can exert a strong influence even at the conception and initiation stages, and have even stronger control at the implementation and routinization stages. We believe that Feeley’s theoretical framework can be expanded to be more generally applicable to court reforms outside the United States. This could be achieved by introducing the degree of openness of the policy-making process at the conceptualization and initiation stages, and by introducing a degree of fragmentation of the policy-making process at the implementation and routinization stages as central independent variables which determine the course of the reform.

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Advance Toward "People's Court" in South Korea

Yong Chui Park
27 WASH. INT’L L.J. 177
December 2017

Since 2008, criminal jury trials have been implemented in South Korea with the Citizen Participation in Criminal Trials Act. Under the Act, defendants have the option to choose a jury trial over a bench trial, although jury verdicts, as well as sentencing opinions rendered by a jury, are not binding on the court pursuant to Article 46(2) of the Act. While Korea’s adoption of a criminal jury trial was an ambitious move toward judicial reform, it has faced serious obstacles and has had limited influence over the Korean judicial system. In this Article, I use the five stages of planned legal change identified in Malcolm Feeley’s book titled Court Reform on Trial (1983) as an analytical framework to explain why the criminal jury trial might not be the best way to regain the public’s confidence in the system and what should be done to better the system. 

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Criminal Court Reform in Taiwan: A Case of Fragmented Reform in a Not-Fragmented Court System

Kai-Ping Su
27 WASH. INT’L L.J. 203
December 2017

This Article examines the character of Taiwan’s criminal court system and proposed court reforms. Taiwan’s criminal court is a not-fragmented system, distinct from the fragmented American criminal court. In fact, with hierarchical control in prosecutorial rulings and central administration of judicial decision-making, Taiwan’s criminal court system can be deemed a relatively centralized and bureaucratic organization. Given this context, when Taiwan’s criminal justice system disappoints the people, judges take the blame for the failures of the system. To resolve the serious problem of public distrust in judges and the court system, Taiwan’s government and the judicial authority make “responding to expectations of the people” the ultimate goal of current court reform. Nonetheless, although this goal appears to be simple and intuitive, this Article argues that, due to its fragmented nature, this goal is not equal to its task. This Article further argues that pursuing the fragmented goal of court reform in a not-fragmented system like Taiwan’s criminal court may very possibly lead to conflicts of important values and generate a counterproductive result.

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Court Reform with Chinese Characteristics

Margaret Y.K. Woo
27 WASH. INT’L L.J. 241
December 2017

 In Court Reform on Trial: Why Simple Solutions Fail, Malcolm Feeley identified a number of obstacles that undermine reforms of the United States court system. Feeley’s proposed solution was to adopt a problem-oriented “rights strategy”—letting the courts themselves solve their problems through litigation. This is because litigation is a forum in which courts are well placed to identify specific problems and devise pragmatic solutions. This Article takes a look at this proposition in the context of court reforms in China and concludes that courts (and law) are also a reflection of national goals and identity. Any reforms to a court system must not only take into consideration expectations and realistic goals, but also the fundamental identity of a particular legal system. In a top-down society like China, national goals—and hence, national identity—are defined by the Chinese Communist Party. Chinese courts have come a long way in their reforms and court reforms in China have often been couched in the language of national goals. Any proposed court reforms that challenge national goals and identity are doomed to fail.

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East Asian Court Reform on Trial: Comments on the Contributions

Malcolm M. Feeley
27 WASH. INT'L L.J. 273
December 2017

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The Supreme People's Court's Annual Report on Intellectual Property (2016) (China) 

Translated by Tianyi (Tammy) Wu & Xiaoyang Wang
27 WASH. INT’L L.J. 295
December 2017

The Supreme People’s Court of China began publishing its Annual Report on Intellectual Property Cases in 2008. The Annual Report summarizes intellectual property cases, such as patent, trademark, copyright, trade secrets, and unfair competition cases. This 2016 Annual Report examines 27 cases and includes general guidelines for legal application. It reflects the Supreme People’s Court’s thoughts and approaches for ruling on new, difficult, and complex IP and competition cases.

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"So Far as War Allows": Why the Al Mahdi Conviction is Unlikely to Stem the Pace of Cultural Destruction Perpetrated by Non-State Actors

Jessica E. Burrus
27 WASH. INT’L L.J. 317
December 2017

In September of 2016, Ahmad Al Faqi Al Mahdi was convicted in the International Criminal Court (“ICC”) for the intentional destruction of several World Heritage sites during the 2012 conflict in Timbuktu, Mali. This conviction was hailed as a breakthrough after years of frustration with the lack of enforcement of international laws prohibiting the destruction of cultural property. It was also the first conviction of its kind, and advocates of cultural preservation have celebrated it as a much-needed general deterrent in North Africa and the Middle East, where iconoclasm has become a favorite tactic of various state and non-state actors in armed conflict. However, the Al Mahdi trial may in fact be the exception that proves the untenability of the legal regime protecting cultural heritage sites. Current treaty law protecting immovable cultural property reflects an increasingly outdated philosophical and historical narrative that is directly contradicted by the ideologies of the groups that most often threaten World Heritage sites. As long as the protection of cultural property remains more closely associated with a state’s sovereign responsibility to protect physical buildings, as opposed to the international community’s willingness to protect the people who hold those buildings dear, the effective prevention of the destruction of cultural heritage will remain out of reach.

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