Japanese Business Law

Name: Japanese Business Law
Brand: Kluwer Law International
Price: 283.99 EUR
Availability: OnlineOnly

Gerald Paul McAlinn(Herausgeber*in)

Kluwer Law International (Verlag)

Erschienen am 6. Dezember 2007

774 Seiten

E-Book

PDF mit Adobe-DRM

Systemvoraussetzungen

978-90-411-7439-0 (ISBN)

283,99 €inkl. 7% MwSt.

Systemvoraussetzungen

für PDF mit Adobe-DRM

E-Book Einzellizenz

Als Download verfügbar

Beschreibung

Weitere Details

Weitere Ausgaben

Inhalt

Cover
Half Title Page
Title Page
Copyright Page
Dedication
Table of Contents
About the Editor and Contributors
Preface
Acknowledgements
Chapter 1 Introduction: Japan
1. CREATION MYTHS AND ANCIENT HISTORY
1.1 THE BIRTH OF JAPAN AND THE DIVINE ROOTS OF THE EMPEROR
1.2 CHINESE INFLUENCES ON EARLY JAPAN
2. THE UNIFICATION OF JAPAN UNDER THE SHOGUNS
2.1 THE FORGING OF A NATIONAL CHARACTER
2.2 FROM SAMURAI TO BUREAUCRAT
2.3 WESTERN CONTACTS AND THE CLOSING OF JAPAN
3. THE MEIJI RESTORATION
3.1 THE MODERNIZATION OF MEIJI JAPAN
3.2 THE MEIJI CONSTITUTION AND THE RUSSO-JAPANESE WAR OF 1904
4. THE SHOWA EMPEROR AND WWII
4.1 HEGEMONY UNDER THE GREATER EAST ASIA CO-PROSPERITY SPHERE
4.2 WAR AND OCCUPATION
5. THE CONSTITUTION, THE EMPEROR AND RENUNCIATION OF WAR
5.1 ADOPTING THE CONSTITUTION AND ESTABLISHING A FORM OF GOVERNMENT
5.2 THE ROLE OF THE EMPEROR AND THE RENUNCIATION OF WAR
6. THE 'ECONOMIC MIRACLE' AND THE 'BUBBLE ECONOMY'
6.1 THE POST-WWII ECONOMIC MIRACLE
6.2 THE 'BUBBLE ECONOMY' AND ITS AFTERMATH
6.3 THE 'LOST DECADE' OF THE 1990S
7. REFORM
8. JAPAN TODAY
8.1 GEOGRAPHY, POPULATION, AND RELIGION
8.2 ETHNICITY AND THE STRUGGLE FOR THE RIGHTS OF INDIGENOUS PEOPLE AND FOREIGNERS
8.3 AGING POPULATION AND DECLINING BIRTH RATE
8.4 RELIGION AND RITUAL
8.5 INFRASTRUCTURE
8.6 POLITICS
8.7 ECONOMY
8.8 RELATIONSHIP WITH CHINA
8.9 FREE TRADE AGREEMENTS (FTAS) AND ECONOMIC PARTNERSHIP AGREEMENTS (EPAS)
9. THE LAW-MAKING PROCESS
9.1 LAW-MAKING
9.2 THE ADMINISTRATIVE PROCEDURE ACT
9.3 TREATIES UNDER JAPANESE LAW
10. ADMINISTRATION OF JUSTICE
10.1 THE SUPREME COURT
10.2 JUDICIAL REVIEW
10.3 CASELOAD
10.4 RULE-MAKING AUTHORITY
10.5 SUMMARY COURTS
10.6 DISTRICT COURTS
10.7 FAMILY COURTS
10.8 HIGH COURTS
10.9 LOWER COURT JUDGES AND ASSISTANT JUDGES
11. CONCLUSION
Chapter 2 Law Reform, Lawyers, and Access to Justice
1. HISTORICAL OVERVIEW
1.1 THE LEGAL SYSTEM DURING THE MEIJI ERA (1868-1912)
1.2 POST-WAR REFORM AND DEVELOPMENTS BEFORE THE JSRC
1.2.1 Judiciary
1.2.2 Practicing Attorneys
1.2.3 Qualifying and Training of the Legal Profession
1.2.4 Size and Distribution of Legal Profession
1.3 FAILED AND MINOR REFORMS
2. FROM ADMINISTRATIVE REFORM TO JUDICIAL REFORM
2.1 DEREGULATION, TRANSPARENCY, AND LEGAL ACCOUNTABILITY
2.1.1 Examples of Administrative Reform
2.2 JUDICIAL REFORM ON THE NATIONAL AGENDA
2.2.1 Proposals for Reform
2.2.2 Reasons for the Reform Proposals
3. THE JUSTICE SYSTEM REFORM COUNCIL
3.1 ESTABLISHING THE JSRC
3.2 THE ROLE AND COMPOSITION OF THE JSRC
3.3 RECOMMENDATIONS OF THE JSRC AND IMPLEMENTATION
3.4 RETURN OF THE OLD POLICY-MAKING PROCESS
3.5 RECOMMENDATION TO ESTABLISH GRADUATE PROFESSIONAL LAW SCHOOLS
3.6 ARRANGEMENTS FOR IMPLEMENTATION UNDER THE PROMOTION LAW
3.7 POLITICS OVER IMPLEMENTATION OF THE JSRC RECOMMENDATIONS
3.8 POLITICS OF THE REFORM OF EDUCATION AND TRAINING OF LEGAL PROFESSIONALS
4. CHARTERING NEW LAW SCHOOLS
4.1 ENTRANCE EXAMS AND ADMISSIONS
4.2 FINANCING LAW SCHOOLS
4.3 GEOGRAPHICAL DISTRIBUTION
4.4 ROADBLOCK FOR NEW LAW SCHOOLS
4.5 RESULTS OF NEW NATIONAL BAR EXAMINATION
4.6 THE FUTURE OF LAW SCHOOLS
5. JUSTICE SYSTEM REFORM AND PUBLIC PARTICIPATION IN THE ADMINISTRATION OF JUSTICE
5.1 SPEEDING UP OF LITIGATION
5.2 REFORMS TO THE CRIMINAL JUSTICE SYSTEM
5.2.1 Extension of Court-Appointed Defense Lawyer
5.2.2 Lay Judge
5.3 INQUESTS OF PROSECUTION
6. REFORM OF THE LEGAL PROFESSION
6.1 IN-HOUSE LAWYERS
6.2 ATTORNEY FEES
6.3 QUALIFYING BY SPECIAL PROCEDURES
7. FOREIGN LAWYERS
8. PROFESSIONAL ETHICS AND DISCIPLINE
9. REFORMS REGARDING OTHER LAW-RELATED OCCUPATIONS
9.1 JUDICIAL SCRIVENERS (SHIHO SHOSHI)
9.2 PATENT ATTORNEYS (BENRISHI)
9.3 TAX AGENTS (ZEIRISHI)
9.4 MEMBERS OF COMPANY LEGAL DEPARTMENTS (HOMUBUIN)
10. ACCESS TO THE JUSTICE SYSTEM
10.1 ESTABLISHMENT OF THE JAPAN LEGAL SUPPORT CENTER
10.2 STAFFING AND CRITICAL ISSUES FACING THE JLSC
11. REFORMS REGARDING JUDGES
11.1 REFORM OF JUDICIAL APPOINTMENT AND JUDICIAL EVALUATION
11.2 RECRUITING MORE ATTORNEYS AS JUDGES
11.3 WORKING EXPERIENCE OUTSIDE THE COURT FOR ASSISTANT JUDGES AND PROSECUTORS
12. CONCLUSION
Chapter 3 Corporations
1. INTRODUCTION
1.1. THE COMPANY LAW
2. FORMS OF COMPANIES
2.1 KINDS OF COMPANIES UNDER THE OLD COMMERCIAL CODE
2.2 KINDS OF COMPANIES UNDER THE COMPANY LAW
2.3 NEW CATEGORIES OF COMPANIES
2.3.1 Public/Non-Public Companies
2.3.2 Large Companies
3. MINIMUM PAID-IN CAPITAL
3.1 MINIMUM PAID-IN CAPITAL REQUIREMENT
3.1.1 Requirement under the old Commercial Code
3.1.2 Abolishment of Requirement under the Company Law
4. SHARES
4.1 ACQUISITION OF TREASURY SHARES
4.2 ACQUISITION WITHOUT A RESOLUTION OF SHAREHOLDERS
4.3 AMENDMENTS WITH RESPECT TO RESTRICTIONS ON TRANSFER OF SHARES
4.4 AMENDMENTS CONCERNING CLASSES OF SHARES
4.5 PRINCIPLE OF NON-ISSUANCE OF SHARE CERTIFICATES
5. ORGANS AND GOVERNANCE
5.1 ORGANS OF A STOCK COMPANY (KABUSHIKI KAISHA) UNDER THE OLD COMMERCIAL CODE
5.1.1 Governing Bodies of Stock Companies (Kabushiki Kaisha)
5.1.2 Governing Bodies in Stock Companies with Committees
5.1.3 Governing Bodies in Private Limited Companies (Yugen Kaisha)
5.2 CORPORATE GOVERNANCE STRUCTURES UNDER THE COMPANY LAW
6. SHAREHOLDERS' MEETINGS
6.1 LOCATION OF SHAREHOLDERS' MEETINGS
6.2 CONVOCATION NOTICE
6.3 EXERCISE OF VOTES IN WRITING
6.4 RESTRICTION ON VOTING RIGHTS REGARDING SHARES CONTROLLED BY THE ISSUER
6.5 VOTING REQUIREMENTS
6.6 SHAREHOLDERS' MEETINGS OF COMPANIES WITHOUT A BOARD OF DIRECTORS
7. DIRECTORS AND THE BOARD OF DIRECTORS
7.1 ROLE OF DIRECTORS UNDER THE COMPANY LAW
7.1.1 Role of directors of a Company with Committees (Iinkai Setchi Kaisha)
7.1.2 Role of Directors of a Company without a Board of Directors
7.2 NUMBER OF DIRECTORS
7.3 QUALIFICATION OF DIRECTORS
7.3.1 Qualification - Shareholders
7.3.2 Disqualification
7.4 TERM OF OFFICE OF DIRECTORS
7.5 DISMISSAL OF DIRECTORS
7.6 BOARD OF DIRECTORS
7.6.1 Convocation of a Board of Directors' Meeting
7.6.2 Resolutions in Writing
8. INTERNAL CONTROL SYSTEM
9. ACCOUNTING ADVISOR (KAIKEI SANYO)
10. STATUTORY AUDITOR AND BOARD OF STATUTORY AUDITORS
10.1 AMENDMENT TO THE SCOPE OF AUTHORITY
10.2 TERM OF OFFICE
10.3 DISMISSAL
10.4 BOARD OF STATUTORY AUDITORS
11. ACCOUNTING AUDITORS (KAIKEI KANSANIN)
12. GODO KAISHA
12.1 INTRODUCTION OF LIMITED LIABILITY COMPANY (GODO KAISHA)
12.2 GODO KAISHA AND KABUSHIKI KAISHA: A COMPARISON
12.2.1 Flexibility in Governance
12.2.2 Assignment of Membership
12.2.3 Incorporation Process
12.3 PRACTICAL USE
13. LIMITED LIABILTIY PARTNERSHIP (LLP)
14. ARTICLE 821 AND FOREIGN COMPANIES
15. MERGERS & ACQUISITIONS
15.1 M&A METHODS AVAILABLE UNDER THE COMPANY LAW
15.1.1 Merger (Gappei)
15.1.2 Company Separation (Kaisha Bunkatsu)
15.1.3 Share Transfer & Share Exchange
15.1.4 Business Transfer ( jigyo joto/jigyo yuzuriuke)
15.1.5 Conversion of Company Types
15.2 RELAXATION OF FORMS OF CONSIDERATION
15.2.1 Cash-Out Merger
15.2.2 Triangular Merger
15.3 SMALL-SCALE TRANSACTIONS
15.3.1 Small-Scale Merger and Small Scale Share Exchange
15.3.2 Small-Scale Company Separation
15.3.3 Small-Scale Business Transfer
15.3.4 Exceptions to Small-Scale Procedures
15.3.5 Protection of Minority Shareholders in a Small-Scale Transaction
15.4 SUMMARY PROCEDURES
15.4.1 Summary Procedures for Merger (Absorption Type)
15.4.2 Summary Procedures for Company Separation (Absorption Type)
15.4.3 Summary Procedures for Share Exchange
15.4.4 Summary Procedures for Business Transfer
15.4.5 Protection of Minority Shareholders in a Summary Procedure
15.5 USE OF DIVIDENDS IN KIND IN M&A TRANSACTIONS
15.6 SUCCESSION OF SHARE PURCHASE WARRANTS
15.7 DEFENSE MEASURES
15.7.1 Shares with Repurchase Clauses (Shutoku Joko-Tsuki Kabushiki)
15.7.2 Stock with Veto Power ('Golden Stock')
15.7.3 Supermajority Clause
15.7.4 Share Purchase Warrants with Call Option
Chapter 4 Corporate Governance and M&A
1. OVERVIEW
2. JAPAN, INC. AND POST-WAR 'CORPORATE GOVERNANCE'
3. THE UNRAVELING OF JAPAN, INC.
3.1 UNMASKING OF THE BUBBLE ECONOMY
3.2 GLOBALIZATION OF FINANCIAL MARKETS IN PARTICULAR
3.3 REPRESSION OF ORGANIZED CRIME
3.4 UNWINDING OF STABLE SHAREHOLDINGS
EROSION OF LIFETIME EMPLOYMENT
3.5 INTELLECTUAL AND IDEOLOGICAL INFLUENCES
4. WATERSHEDS IN THE LAW OF M&A AND CORPORATE GOVERNANCE
4.1 THE DAIWA BANK CASE - SHAREHOLDER LITIGATION PUTS TEETH INTO DIRECTORS' DUTIES
4.2 CORPORATE RAIDERS - SHAREHOLDERS RIGHTS CRUSADERS OR GREENMAILERS?
4.3 TOKYO MITSUBISHI FINANCIAL GROUP-UFJ HOLDINGS: DELAWARE LAW EMERGES AS THE PRESUMPTIVE REFERENCE POINT FOR JAPAN
4.4 LIVEDOOR - NIPPON BROADCASTING SYSTEM: THE COURTS IN THE SPOTLIGHT
4.5 THE POISON PILL AND OTHER DEFENSIVE TECHNIQUES - OVERKILL?
4.6 CORPORATE GOVERNANCE LAW AND PRACTICE
4.7 THE PROSECUTIONS OF HORIE AND MURAKAMI, SELECTIVE ENFORCEMENT AND THE RULE OF LAW
5. CONCLUSION
Chapter 5 Contract and Tort
I. CONTRACT LAW
1. INTRODUCTION
1.1 ORIGINS
1.2 TYPES OF CONTRACT
2. FORMATION OF CONTRACT
2.1 OFFER AND VALIDITY
2.2 ACCEPTANCE AND TIMING
2.3 COUNTER-OFFER
2.4 E-COMMERCE
2.5 BATTLE OF THE FORMS
3. PRE-CONTRACTUAL LIABILITY AND LETTERS OF INTENT
3.1 DUTY OF CARE
3.2 THE MITSUI & CO. CASE
3.3 THE UFJ GROUP V. MITSUI TRUST CASE
4. EFFECT OF CONTRACT FORMATION
PERFORMANCE
4.1 GENERAL THEORY
4.2 BILATERAL CONTRACT
4.2.1 Impossibility to Perform Ab Initio
4.2.2 Simultaneous Performance
4.2.3 Anticipatory Breach
4.3 RISK OF LOSS
4.3.1 Loss of Specific Thing
4.3.2 Loss of Unspecified Thing
4.4 THIRD PARTY BENEFICIARY CONTRACTS
5. GROUNDS FOR TERMINATING CONTRACTS
5.1 DELAY IN PERFORMANCE
5.2 NON-PERFORMANCE
5.3 IMPERFECT PERFORMANCE
6. REMEDIES
6.1 SPECIFIC PERFORMANCE
6.2 MONETARY DAMAGES
7. ASSIGNMENT OF CLAIMS
7.1 ASSIGNEE'S RIGHT AGAINST DEBTOR
7.2 DEBTOR'S DEFENSE AGAINST ASSIGNEE
7.2.1 Assignment by Notice to Debtor
7.2.2 Debtor's Acceptance of Assignment
7.3 PERFECTION
7.3.1 Notice with a Certified Date
7.3.2 Notice or Acceptance through Special Legal Documentation
7.4 REGISTRATION SYSTEM OF BULK CLAIMS
7.5 COMPETING INTERESTS
8. SALE AND PURCHASE CONTRACTS
8.1 THE NOTION OF 'RIGHT TO PROPERTY'
8.2 OPTION (YOYAKU)43 TO ENTER INTO SALE AND PURCHASE TRANSACTION
8.2.1 Option Agreements
8.2.2 Option Agreement as Substitute for Mortgage
8.3 EARNEST MONEY (TETSUKEKIN)
8.3.1 Consequence of Earnest Money
8.3.2 Is the Money Really 'Earnest Money'?
8.4 DELIVERY AND PAYMENT TERMS
8.5 DEFECTS
8.5.1 Apparent Defect
8.5.2 Latent Defects
8.6 DUTY TO INSPECT PROPERTY
9. CONTINUOUS TRANSACTIONS
9.1 EMPLOYMENT AGREEMENTS
9.2 DISTRIBUTORSHIP AGREEMENTS
9.2.1 General
9.2.2 Certain Cases Dealing with the Termination of Distributorship Agreements
9.2.2.1 Distribution of Rice Planting Machinery
9.2.2.2 Two Conflicting Cases on the Distribution of Cosmetic Products
9.2.2.3 Distribution of Household Medicine for 100 years
9.2.2.4 Other Recent Cases
9.2.2.5 Reasoning for Protection of Distributors
9.2.3.6 The Future
10. CIVIL CODE AND COMMON LAW CONTRACTS
10.1 NO REQUIREMENT FOR CONSIDERATION
10.2 NO PAROL EVIDENCE RULE
10.3 NO REQUIREMENT FOR WRITING
10.4 STATUTE OF LIMITATIONS OR PRESCRIPTION
11. CONTRACTING WITH JAPANESE COMPANIES
11.1 USE AND EFFECT OF SEALS
11.2 APPROVAL PROCESS
11.3 NEGOTIATION
II. TORT LAW
12. INTRODUCTION
12.1 HISTORICAL AND COMPARATIVE BACKGROUND
13. NEGLIGENCE
13.1 GENERAL PROVISION
13.2 FAULT OF A DEFENDANT
13.3 INFRINGEMENT OF A LEGALLY PROTECTED BENEFIT
13.4 CAUSAL LINK (CAUSATION)
14. REMEDIES
14.1 GENERAL - MONETARY DAMAGES, RESTITUTION, AND INJUNCTION
14.2 SPECIAL CONSIDERATIONS IN ENVIRONMENTAL CASES
14.3 SCOPE AND AMOUNT OF DAMAGES - 'ADEQUATE CAUSAL RELATIONSHIP'
14.4 ATTORNEY FEES
14.5 PECUNIARY AND NON-PECUNIARY DAMAGES
14.6 PUNITIVE DAMAGES
14.7 REDUCTION IN THE AMOUNT OF DAMAGES
14.8 STATUTE OF LIMITATIONS
15. SPECIAL PROVISIONS
15.1 EMPLOYER LIABILITY
15.2 COMPETING CAUSES OF ACTION
15.3 LIABILITY FOR DEFECTS IN STRUCTURES ON LAND
15.4 STATE COMPENSATION LAW
16. JOINT LIABILITY
Chapter 6 Product Liability and Safety Regulation
1. INTRODUCTION
2. PRODUCT LIABILITY
2.1 HISTORICAL AND COMPARATIVE TRAJECTORY
2.2 TESTING AND TRANSCENDING TRADITIONAL TORT LAW
2.3 COMPARING THE PL LAW OF 1994
3. THE PL LAW IN ACTION
4. INTERFACE WITH JAPAN'S RE-REGULATORY STATE
5. CONCLUSIONS: RETHINKING PL (AND TORT) LAW AND PRACTICE IN JAPAN
Chapter 7 Real Property and Securitization
1. INTRODUCTION AND OVERVIEW
1.1 FUNDAMENTAL DIFFERENCES BETWEEN JAPANESE AND AMERICAN LAW
1.2 CIVIL CODE PROVISIONS RE: PROPERTY
1.2.1 The Real Rights (Bukken) and Obligation Rights (Saiken) Dichotomy
1.2.2 Types of Real Rights
1.2.3 Ownership (Shoyuken)
1.2.4 Possessory Right (Senyuken)
1.2.5 Limited Real Rights (Seigen Bukken)
1.2.6 Other Non-Civil Code Property Rights
2. CO-OWNERSHIP AND COMPARTMENTALIZED UNIT OWNERSHIP
2.1 CO-OWNERSHIP (KYOYU)
2.1.1 General Characteristics of Co-Ownership
2.1.2 Right to Partition
2.1.3 Co-Ownership Administration, etc.
2.2 COMPARTMENTALIZED UNIT OWNERSHIP
2.2.1 Transfer of Rights
2.2.2 Management and Administration of Compartmentalized Buildings
2.2.3 Reconstruction of Compartmentalized Building
3. REAL PROPERTY REGISTRATION SYSTEM
3.1 OVERVIEW OF THE REGISTRATION SYSTEM
3.2 REGISTRATION PROCEDURES
3.3 SIGNIFICANCE OF REGISTRATION
3.3.1 Perfection and Priority
3.3.2 Presumption of Registered Rights
3.3.3 Provisional Registration
4. LEASES
4.1 NATURE OF A JAPANESE LEASE
4.2 OVERVIEW OF LEASE LAW IN JAPAN
4.2.1 Principal Japanese Laws Dealing with Leases
4.2.2 Introduction and History
4.3 LAND AND BUILDING LEASE LAW
4.3.1 Length of Lease Term Generally
4.3.2 Land Leases
4.3.3 Building Leases
4.3.4 Temporary Use Leases
4.4 RENT REVIEW
4.5 TYPICAL LEASE DEPOSITS AND OTHER PAYMENTS IN ADDITION TO RENT
4.5.1 Common Benefit Charges and Supplemental Use Charges
4.5.2 One-Time Payments at Time of Lease Commencement
4.5.3 Lease Extension Fees (Koshinryo)
4.6 ASSIGNMENT AND SUBLEASING
4.7 TERMINATION
4.7.1 Landlord's Ability to Terminate Lease
4.7.2 Tenant's Ability to Terminate Lease
4.8 REPAIR OBLIGATIONS
4.9 IMPACT OF LAND AND BUILDING LEASE LAW ON REAL ESTATE INVESTMENT PRACTICES
4.10 PERFECTION OF LEASES
5. REAL ESTATE TRANSACTIONS
5.1 INTRODUCTION
5.2 DUE DILIGENCE
5.2.1 Generally
5.2.2 Environmental Matters
5.3 USE OF TRUSTS AND TRUST BENEFICIARY INTERESTS
6. REAL ESTATE SECURITIZATION
6.1 OVERVIEW
6.2 ALTERNATIVE SECURITIZATION STRUCTURES AND VEHICLES
6.3 REAL ESTATE SYNDICATION ACT
6.3.1 Overview
6.3.2 Basic Concepts of Partnership Investment
6.3.3 Basic Concepts of TK Investment
6.3.4 Comparison of Legal Risks of Partnership Investments versus TK Investments
6.3.5 Reasons for Popularity of TK Investment Arrangement
6.3.6 Licensing Requirements
6.3.7 Disclosure Requirements
6.4 POPULAR JAPANESE SECURITIZATION STRUCTURES AND TECHNIQUES
6.4.1 Former YK - TK Structure and its Possible Successor
6.4.2 Trust Beneficiary Interests and Certificates
6.4.3 Non-Recourse Financing
6.5 TMK LAW
6.5.1 Overview
6.5.2 Principal Features of TMK Structure
6.5.3 TMKs and TMSs
6.5.4 General Description of TMKs
6.5.5 Specified Assets
6.5.6 Entrustment of Management and Disposition of Specified Assets
6.5.7 Required Initial Filings of TMKs
6.5.8 Asset Securitization Plan
6.5.9 Specified Capital Contributions and Negotiable Securities
6.5.10 Members
6.5.11 Special Purpose Borrowings (Tokutei Mokuteki Kariire)
6.5.12 Disclosure Requirements
6.5.13 Comparison of TMK and J-REIT Structures
6.6 J-REIT LAW
6.6.1 Overview
6.6.2 General Nature of J-REITs
6.6.3 Birth of the J-REIT
6.6.4 Possible J-REIT Vehicles
6.6.5 Overview of Investment Company
6.6.6 Establishment of Investment Company
6.6.7 Entrustment of Operations
6.6.8 Governance of Investment Company
6.6.9 Investor Protection Principles (Fiduciary Duty of Loyalty and Duty of the Diligence of a Good Manager)
Conflicts of Interest
6.6.10 Fund-Raising
6.6.11 Listing and Offering of Investment Units
6.6.12 Ongoing Information Disclosure Requirement
6.6.13 Minimum Asset Value
Distributions of Profit
Taxation
6.6.14 Tax Advantages of J-REIT
6.7 CURRENT MARKET SITUATION
6.8 RECENT DEVELOPMENTS
6.8.1 Financial Instruments and Exchange Law
6.8.2 Removal of Restriction on Non-Japanese Real Estate Assets for J-REITs
Chapter 8 Intellectual Property and Licensing
1. INTRODUCTION
1.1 JAPAN AS A 'NATION BUILT ON INTELLECTUAL PROPERTY'
2. PATENTS
2.1 SOURCES OF LAW
2.2 REQUIREMENTS FOR PATENTABILITY
2.2.1 Novelty
2.2.2 Utility
2.2.3 Inventive Step
2.3 PERSONS WHO MAY APPLY FOR PATENTS
2.4 EMPLOYEE INVENTIONS AND COMPENSATION TO EMPLOYEE-INVENTORS
2.5 APPLICATION, EXAMINATION, AND REGISTRATION
2.6 APPLICATION BACKLOG
2.7 SCOPE OF THE PATENT RIGHT
2.8 PRIOR USE AND OTHER PERMITTED USES
2.9 ALL ELEMENTS RULE AND 'DOCTRINE OF EQUIVALENTS'
2.10 PATENT INFRINGEMENT CLAIMS
2.11 INVALIDITY DEFENSE
2.12 REMEDIES FOR INFRINGEMENT
2.13 DISPOSITION AND LICENSING OF PATENTS
2.13.1 Registered Licenses
2.13.2 Compulsory Licenses
3. UTILITY MODELS AND INDUSTRIAL DESIGNS
3.1 UTILITY MODELS
3.2 INDUSTRIAL DESIGNS
4. TRADEMARKS
4.1 SOURCES OF LAW
4.2 REQUIREMENTS FOR TRADEMARK REGISTRATION
4.2.1 Use
4.2.2 Distinctiveness and Secondary Meaning
4.3 MARKS NOT REGISTERABLE
4.4 PERSONS WHO MAY APPLY FOR TRADEMARKS
4.5 COLLECTIVE MARKS
4.6 APPLICATION, EXAMINATION, REGISTRATION, AND OPPOSITION
4.7 SCOPE OF TRADEMARK RIGHT
4.8 EXCEPTIONS TO EXCLUSIVE RIGHT FOR CONFLICTING RIGHTS AND PRIOR USERS
4.9 DEFENSIVE MARK REGISTRATIONS
4.10 LOSING THE TRADEMARK RIGHT
4.10.1 Opposition and Invalidation of Registration
4.10.2 Non-Use
4.10.3 Improper Use or Application
4.11 TRADEMARK INFRINGEMENT
4.11.1 Remedies for Trademark Infringement
4.12 DISPOSITION AND LICENSING OF TRADEMARKS
5. COPYRIGHT
5.1 SOURCES OF LAW
5.2 PROTECTED WORKS
5.3 AUTHORS
5.4 SCOPE OF COPYRIGHTS
5.5 MORAL RIGHTS
5.6 DURATION
5.7 NEIGHBORING RIGHTS
5.8 LIMITATIONS AND EXCEPTIONS
5.9 COMPULSORY LICENSES
5.10 COPYRIGHT REGISTRATION
5.11 COPYRIGHT INFRINGEMENT CLAIMS AND REMEDIES
5.12 LICENSING AND DISPOSITION OF COPYRIGHTS
6. OTHER REGISTERED INTELLECTUAL PROPERTY
6.1 CIRCUIT LAYOUTS OF SEMICONDUCTOR INTEGRATED CIRCUITS
6.2 SEEDS AND SEEDLINGS
7. UNFAIR COMPETITION PREVENTION LAW
8. IMPORTATION OF INFRINGING GOODS
8.1 INFRINGING AND GRAY MARKET IMPORTS
9. ANTIMONOPOLY LAW AND LICENSING GUIDELINES
10. IT AND E-COMMERCE LAW
11. PRIVACY LAW
12. INTELLECTUAL PROPERTY HIGH COURT AND RELATED DEVELOPMENTS
Chapter 9 Media and Telecommunications
1. INTRODUCTION
2. LEGAL STATUS OF SPEECH AND PRESS
2.1 CONSTITUTIONAL FRAMEWORK
2.2 KISHA CLUBS AND THE PRESS
2.3 DEFAMATION AND INVASION OF PRIVACY (MEIYO KISON)
2.4 REPORTER'S RIGHT TO REFUSE TO REVEAL A SOURCE
3. BOOKS, NEWSPAPERS, AND MAGAZINES
3.1 ANTIMONOPOLY LAW EXEMPTION FOR NEWSPAPERS
3.2 OVERVIEW OF THE NEWSPAPER INDUSTRY
3.3 DISTRIBUTION AND THE RISE OF CONVENIENCE STORES AND MANGA CAFES
4. BROADCASTING
4.1 PUBLIC BROADCASTER (NHK)
4.2 PRIVATE BROADCASTERS AND FOREIGN OWNERSHIP
4.3 BROADCAST COMPETITION AND THE CHALLENGE OF DIGITALIZATION
5. INTERNET AND COMPUTER-BASED COMMUNICATION
6. TELEPHONES
7. MUSIC, MOVIES, AND VIDEO GAMES
7.1 MUSIC
7.2 MOVIES AND VIDEO GAMES
7.2.1 Movies
7.2.2 Video Games
8. FREEDOM OF INFORMATION AND FREEDOM FROM DISCLOSURE OF INFORMATION
9. CONCLUDING OBSERVATIONS
Chapter 10 Employment and Labor
1. INTRODUCTION
1.1 OVERVIEW
1.2 UNEMPLOYMENT
1.3 EMERGING TRENDS IN THE WORKPLACE
1.4 MANAGEMENT STRUCTURE IN JAPANESE COMPANIES
2. THE CONSTITUTIONAL FRAMEWORK OF WORK
2.1 FREEDOM TO CHOOSE AN OCCUPATION
AND THE PROHIBITION AGAINST SLAVERY
2.2 THE RIGHT AND DUTY TO WORK
AND THE RIGHT TO ORGANIZE AND BARGAIN COLLECTIVELY
3. MINISTRY OF HEALTH, LABOR AND WELFARE
4. LABOR STANDARDS LAW
4.1 GENERAL PRINCIPLES
4.2 DEFINITION OF WORKER AND EMPLOYER
4.3 RECRUITMENT AND PRE-HIRE INVESTIGATIONS
4.4 EMPLOYMENT CONTRACTS AND WORK RULES
4.5 WAGE AND BONUS SYSTEM
4.6 WORKING HOURS, VACATION, AND OTHER BENEFITS
4.7 CONFIRMATION OF EMPLOYMENT
4.8 MANDATORY RETIREMENT AGE AND THE RETIREMENT ALLOWANCE SYSTEM
4.9 TREATMENT OF COMPANY DIRECTORS
4.10 PRIVACY IN THE WORKPLACE
5. SOCIAL WELFARE BENEFITS AND PUBLIC PENSIONS
5.1 NATIONAL HEALTH (KENKO HOKEN)
5.2 UNEMPLOYMENT INSURANCE (KOYO HOKEN)
5.3 DISABILITY INSURANCE (ROSAI HOKEN)
5.4 NATIONAL PENSION (KOSEI NENKIN)
5.5 INTERNATIONAL SOCIAL SECURITY AGREEMENTS
6. MANAGING, DISCIPLINING AND TERMINATING EMPLOYEES
6.1 GENERAL
6.2 DISCIPLINE AND THE WORK RULES
6.3 TERMINATION AND 'JUST CAUSE'
6.4 DOWNSIZING AND VOLUNTARY RETIREMENT PLANS
7. WORKPLACE EQUALITY
7.1 EQUAL EMPLOYMENT OPPORTUNITY LAW OF 1985
7.2 THE 1997 AMENDMENTS
7.3 SEXUAL HARASSMENT (SEKUHARA)
7.4 DISABILITY
8. DEATH BY OVERWORK (KAROSHI)
9. OCCUPATIONAL SAFETY AND HEALTH
10. WORKER DISPATCH
11. LABOR UNION LAW
11.1 GENERAL
11.2 DEFINITION OF A LABOR UNION
11.3 ESTABLISHMENT AND REGISTRATION OF UNIONS
11.4 POWERS OF A UNION
11.5 UNFAIR LABOR PRACTICES BY THE EMPLOYER
11.6 COMPANY UNIONS AND EMPLOYEE ASSOCIATIONS
11.7 UNIONS AND THE FOREIGN COMPANY
12. CONCLUSION
Chapter 11 Competition and Fair Trade
1. INTRODUCTION
1.1 OVERVIEW
1.2 CALL FOR REFORMING THE AML AND STRENGTHENING THE JAPAN FAIR TRADE COMMISSION
2. ANTIMONOPOLY LAW
2.1 BASIC STRUCTURE
2.2 THE THREE PILLARS OF PROHIBITED CONDUCT
3. EXTRATERRITORIALITY OF THE AML
3.1 THE AML AND PUBLIC INTERNATIONAL LAW
3.2 ARTICLES 3, 6, AND 19 AND INTERNATIONAL TRADE
3.3 APPLICATION OF THE AML TO SPECIFIC INTERNATIONAL CASES
4. INTELLECTUAL PROPERTY AND THE AML
5. THE JFTC
5.1 ORGANIZATION AND JURISDICTION
5.2 FUNCTIONS OF THE JFTC
5.3 ADMINISTRATIVE AND CRIMINAL INVESTIGATIONS
5.3.1 Administrative Proceedings
5.3.2 Criminal Proceedings
5.4 SURCHARGES AND LENIENCY
5.5 PRIVATE ACTIONS
5.6 CRIMINAL PENALTY
6. TRADE AND COMPETITION
7. CONCLUSION
Chapter 12 Taxation
1. INTRODUCTION
1.1 STRUCTURE OF THE TAX SYSTEM
1.2 SOURCES OF TAX LAW
1.2.1 Primary Japanese Tax Statutes
1.3 ADMINISTRATION OF TAX SYSTEM
2. CORPORATION INCOME TAXATION
2.1 CORPORATIONS SUBJECT TO CORPORATE INCOME TAXATION
2.2 TYPES OF CORPORATE INCOME TAXES AND TAX RATES
2.3 SCOPE OF CORPORATION TAXATION
2.4 CONTROLLED FOREIGN COMPANY REGIME
2.5 CALCULATION OF TAXABLE INCOME
2.5.1 Gross Income Subject to Taxation
2.5.2 Exclusions from Gross Income
2.5.3 Non-Recognition Transactions
2.5.3.1 Contributions-In-Kind (Genbutsu Shushi)
3. MERGERS (GAPPEI)
3.1 GENERAL
3.2 TAX QUALIFIED MERGER
3.3 MERGER OF CORPORATIONS HAVING A SPECIFIED SHAREHOLDING RELATIONSHIP
3.3.1 Merger of Corporations within a Direct or Indirect '100 Percent Shareholding Chain'
3.3.2 Merger of Corporations within a Direct or Indirect 'more than 50 Percent and less than 100 Percent Shareholding Chain'
3.4 'JOINT BUSINESS' MERGER
4. CORPORATE DIVISIONS (BUNKATSU)
4.1 GENERAL
4.2 TAX-QUALIFIED DIVISION
4.3 SHARE EXCHANGE RULES
4.3.1 General
4.3.2 Tax-Qualified Share Exchange
4.3.3 Like-Kind Exchange of Real Estate
5. BUSINESS EXPENSE DEDUCTIONS
5.1 GENERAL
5.2 INTEREST
5.3 TAXES
5.4 DEPRECIATION AND AMORTIZATION
5.5 DIRECTOR'S REMUNERATION
5.6 ENTERTAINMENT EXPENSES
5.7 NET OPERATING LOSSES
5.8 TAX CREDITS
6. CORPORATE TAX REPORTING
7. TAXATION OF PARTNERSHIP AGREEMENTS
8. INDIVIDUAL INCOME TAXATION
8.1 INDIVIDUALS SUBJECT TO RESIDENT TAXATION
8.2 TYPES OF INCOME TAXES AND TAX RATES
8.3 SCOPE OF TAXATION
8.4 CALCULATION OF TAXABLE INCOME
8.5 EXCLUSIONS FROM GROSS INCOME
8.6 DEDUCTIONS
8.6.1 General
8.6.2 Basic Standardized Deductions
8.6.3 Loss Limitation Rules
8.7 SOCIAL SECURITY TAXATION
9. INTERNATIONAL TAXATION
9.1 OUTBOUND TAXATION OF JAPAN RESIDENTS INVESTING OVERSEAS
9.1.1 Foreign Tax Credit
9.1.2 Direct Foreign Tax Credit
9.1.3 Indirect Foreign Tax Credit
9.1.4 Local Foreign Tax Credit
9.1.5 Effect of Tax Treaties
9.2 INBOUND TAXATION OF FOREIGN PERSONS INVESTING IN JAPAN
9.2.1 Scope of Taxation
9.2.2 Definition of a Permanent Establishment
9.2.3 Taxation of Foreign Persons with a PE
9.2.4 Withholding Tax on Foreign Partners
9.2.5 Return Requirement
9.2.6 Taxation of Foreign Persons without a PE
9.2.7 Sale of Shares of a Japanese Company
9.2.8 Tax Treaties
9.2.9 Passive Domestic Source Withholding Taxation
10. INHERITANCE AND GIFT TAXATION
10.1 INHERITANCE TAXATION
10.2 GIFT TAXATION
10.3 FOREIGN TAX CREDIT
11. CONSUMPTION TAXATION
11.1 GENERAL
11.2 TAX BASE AND RATES
11.3 TAXABLE TRANSACTIONS
12. OTHER TAXES
Chapter 13 Corporate and Project Finance
1. INTRODUCTION
1.1 EMERGING TRENDS AND CONTINUING IMPEDIMENTS IN THE FINANCIAL SYSTEM
1.2 LENDERS AND THE INSOLVENCY SYSTEM
1.3 EXPANDING SCOPE FOR COLLATERAL BASED LENDING
1.4 REALISTIC ASSESSMENT
2. FINANCING FOR SOLO MARKET ENTRY
2.1 BANKING RELATIONSHIPS
2.2 RENTING AND FITTING OUT OFFICE SPACE
2.3 FINANCING TRADE RECEIVABLES
2.4 PARENT GUARANTEES
3. GOVERNMENT PROGRAMS OFFERING LOW COST FINANCE
3.1 OVERVIEW
3.2 INTERNATIONAL PRESSURE FOR FDI
3.3 AVAILABLE OPTIONS
3.3.1 JETRO
3.3.2 National Government Ministries
3.3.3 The DBJ and JBIC
3.3.4 Protecting Sensitive Information
3.3.5 Regional and Prefectural Programs
3.3.6 Other Sources of Information
4. HOME COUNTRY FINANCIAL INSTITUTIONS
5. JOINT VENTURE AND SYNDICATED ENTRY STRATEGIES
5.1 USE OF JOINT VENTURE PARTNERS FOR FINANCING ENTRY
6. SYNDICATED JOINT VENTURES
7. FINANCING ACQUISITIONS
7.1 RECENT DEVELOPMENTS IN THE ACQUISITION FINANCING LANDSCAPE
7.2 REAL CASES OF HOSTILE TAKEOVERS ON THE HORIZON?
8. ACTIVE FINANCE MARKET FOR ACQUISITIONS AND PROJECTS
9. LEVERAGED BUYOUTS
10. TYPICAL ACQUISITION FINANCING STRUCTURES
11. CONCLUSION
Chapter 14 Financial Services and Regulation
1. HISTORICAL BACKGROUND
1.1 FINANCIAL SERVICES PRIOR TO JAPAN'S 'BIG BANG'
1.2 CAPITAL REGULATION PERIOD AND THE CORE ROLE OF THE BANKING SYSTEM
1.3 REGULATORY SEGMENTS OF THE FINANCIAL SERVICES INDUSTRY
1.4 PROGRESS IN LIBERALIZATION AND INTERNATIONALIZATION OF FINANCE AFTER 1980
1.4.1 The Yen-Dollar Liberalization
1.4.2 Concurrent Liberalization of Other Markets
1.5 FINANCIAL SCANDALS AND THE BURSTING OF THE ASSET BUBBLE
2. JAPAN'S 'BIG BANG' REFORM
2.1 'FREE, FAIR, AND GLOBAL'
2.2 THE FINANCIAL SYSTEM REFORM LAW
3. MINISTRY OF FINANCE AND THE FINANCIAL SUPERVISORY AGENCY
4. INVESTMENT SERVICES LAW
5. SECURITIES
5.1 SCOPE OF LICENSED ACTIVITIES
5.2 CORE BUSINESSES
5.3 ANCILLARY BUSINESSES
5.4 REGISTERING SECURITIES FIRMS
5.5 SECURITIES SALES INTERMEDIARY REGISTRATION
6. FINANCIAL MARKET REGULATORS AND PARTICIPANTS
6.1 THE FSA AND THE SECURITIES AND EXCHANGE SURVEILLANCE COMMITTEE
7. SECURITIES CUSTODY AND CLEARING INSTITUTIONS
8. INVESTOR PROTECTION FUND
9. SECURITIES FINANCE COMPANIES
10. REGULATION OF THE MARKETING OF SECURITIES
10.1 PUBLIC OFFERINGS
10.1.1 Public Offerings of Stock and Pricing
10.1.2 Filing Documentation
10.2 PRIVATE PLACEMENTS
11. ASSET MANAGEMENT
11.1 INVESTMENT ADVISORY AND DISCRETIONARY INVESTMENT MANAGEMENT BUSINESSES
11.2 REGISTRATION AS AN IA
11.3 SCOPE OF LICENSE
11.3.1 Core Business
11.3.2 Side and Concurrent Businesses
11.4 PRODUCT REGULATION
11.4.1 Product Distribution
12. INVESTMENT TRUST SERVICES
12.1 INVESTMENT TRUST MANAGEMENT CORPORATIONS
13. INSURANCE
13.1 BACKGROUND TO THE LIFE INSURANCE INDUSTRY IN JAPAN
13.2 LIFE INSURANCE BUSINESS
13.3 DISTRIBUTION OF LIFE INSURANCE
13.4 CORE FUNCTIONS AND OUTSOURCING
13.5 SCOPE OF LICENSE
13.6 INCIDENTAL BUSINESS
13.7 LOCAL RESPONSIBILITY PRINCIPLE
13.8 ESTABLISHMENT AND LICENSING OF NEW INSURANCE COMPANIES
13.9 REQUIRED DOCUMENTATION AND SUBMISSIONS
13.10 SUPERVISION AND ENFORCEMENT
14. BANKING
14.1 LONG-TERM CREDIT BANKS
14.2 TRUST BANKS
14.3 COMMERCIAL BANKS
14.3.1 Scope of License
14.4 THE BANK OF JAPAN
14.5 FUTURE OF THE BANKING INDUSTRY
15. CONCLUSION
Chapter 15 Reorganization and Bankruptcy
1. INTRODUCTION
2. OVERVIEW OF THE JAPANESE INSOLVENCY SYSTEM
3. CORPORATE LIQUIDATION
3.1 BANKRUPTCY ACT
3.1.1 Initiation of Proceedings
3.1.2 Control of Proceedings
3.1.3 Protections during Proceedings
3.1.4 Preserving Existing Assets: Preservation Measures or Stays
3.1.5 Recapturing Lost Assets: Avoidance Powers
3.1.6 Creditors' Claims: Treatment, Priority, and Distribution
3.1.6.1 Filing Claims
3.1.6.2 Secured Claims
3.1.6.3 Priority Claims
3.1.6.4 General Unsecured Claims
3.1.6.5 Deferred Claims
3.1.6.6 Distribution
3.1.7 Termination of Proceedings
3.2 SPECIAL CORPORATE LIQUIDATION
3.2.1 Initiation of Proceedings
3.2.2 Control of Proceedings
3.2.3 Protections during Proceedings
3.2.4 Creditors' Claims and Termination of Proceedings
4. CORPORATE REORGANIZATION
4.1 OVERVIEW
4.2 CIVIL REHABILITATION ACT
4.2.1 Initiation of Proceedings
4.2.2 Control of Proceedings
4.2.3 Supervisors and Investigators
4.2.4 Trustees and Provisional Administrators
4.2.5 Creditors' Committees and Representatives
4.2.6 Protection during Proceedings
4.2.6.1 Preserving Existing Assets: Preservation Measures or Stays
4.2.6.2 Recapturing Lost Assets: Avoidance Powers
4.2.7 Creditors' Claims: Treatment and Priority
4.2.8 Secured Claims
4.2.9 Priority Claims
4.2.10 General Unsecured Claims and Deferred Claims
4.2.11 Termination of Proceedings
4.2.11.1 Drafting the Plan
4.2.11.2 Approving the Plan
4.2.11.3 Termination of Proceedings
4.2.11.4 Performing, Amending, and Revoking the Plan
4.3 SPECIAL REHABILITATION
4.4 CORPORATE REORGANIZATION ACT
4.4.1 Initiation of Proceedings
4.4.2 Control of Proceedings
4.4.3 Protection during Proceedings: Stays and Avoidance Powers
4.4.4 Creditors' Claims: Treatment and Priority
4.4.5 Termination of Proceedings
4.4.5.1 Drafting and Approving the Reorganization Plan
4.4.5.2 Performing, Amending, and Revoking the Plan
5. CONCLUSION
Chapter 16 Corporate Crime
1. INTRODUCTION
1.1 DEFINING CORPORATE CRIME
1.2 BACKGROUND
1.3 CLASSIFICATION OF CORPORATE CRIME
2. CRIMES RELATED TO THE ESTABLISHMENT AND MANAGEMENT OF A COMPANY
2.1 SPECIAL BREACH OF TRUST BY DIRECTORS, ETC. (ARTICLE 960)
2.2 ENDANGERING A COMPANY'S ASSETS (ARTICLE 963)
2.3 USE OF FALSE DOCUMENTATION (ARTICLE 964)
2.4 DISGUISING CAPITAL CONTRIBUTIONS (ARTICLE 965) (AZUKEAI)
2.5 PROVIDING CONSIDERATION FOR THE EXERCISE OF SHAREHOLDER RIGHTS (ARTICLE 970)
2.6 OTHER OFFENSES
3. CRIMES RELATING TO TRANSACTIONS IN SECURITIES
3.1 CRIMES UNDER THE SECURITIES AND EXCHANGE LAW
3.2 DISCLOSURE VIOLATIONS
3.3 INSIDER TRADING
3.4 MARKET MANIPULATION
4. CRIMES RELATING TO THE MONETARY SYSTEM
4.1 BANKING LAW
4.2 INVESTMENT LAW
4.3 USURY AND MONEY LENDING REGULATIONS
4.4 MONEY LAUNDERING
5. CONSUMER PROTECTION LAWS
5.1 FRAUDULENT TRANSACTION INVOLVING NONEXISTENT COMMODITIES
5.2 PYRAMID INVESTMENT SCHEMES AND MULTI-LEVEL MARKETING
6. CRIMES RELATING TO BRIBERY AND CORRUPTION
7. PROFESSIONAL NEGLIGENCE
8. OTHER CORPORATE CRIMES
8.1 VIOLATION OF THE ANTIMONOPOLY LAW AND TAX EVASION
8.2 CRIMES RELATING TO ENVIRONMENTAL PROTECTION
8.3 CRIMES RELATING TO TRADE REGULATIONS
8.4 CRIMES RELATING TO GAMBLING, PRIZES AND MISLEADING MARKINGS
8.5 CYBERCRIME
9. CRIMINAL PROCEDURE
9.1 INVESTIGATION
9.2 DISPOSITION
9.3 TRIAL
9.4 JUDGMENT
9.5 APPEAL
9.6 INVESTIGATION OF CORPORATE CRIME
9.7 DISPOSITION OF CORPORATE CRIME
9.8 SENTENCING AND CORPORATE CRIME
10. CONCLUSION
Chapter 17 Litigation and Alternative Dispute Resolution
I. LITIGATION
1. INTRODUCTION
2. PREJUDGMENT REMEDY
2.1 PROVISIONAL SEIZURE (KARISASHIOSAE)
2.2 PROVISIONAL DISPOSITION (KARISHOBUN)
3. PRE-LITIGATION PROCEDURES
3.1 ADMINISTRATIVE AGENCIES
3.2 CONCILIATION
3.3 SUMMARY PROCEDURE
3.4 PROCEDURES FOR COLLECTING EVIDENCE AT PRE-LITIGATION STAGE
4. PRESERVATION OF EVIDENCE (SHOKO HOZEN)
4.1 DEFINITION
4.2 PROCEDURES/REQUIREMENTS
4.3 SANCTIONS
5. COURTS
5.1 ORGANIZATION OF JAPANESE COURTS
5.2 THE SUPREME COURT AND INFERIOR COURTS
5.3 CHALLENGES TO A JUDGE'S SUITABILITY
6. JURISDICTION
6.1 CIVIL JURISDICTION
6.2 CONFLICT OF LAWS
6.3 GENERAL RULES
6.4 SUBJECT MATTER JURISDICTION
6.5 TERRITORIAL JURISDICTION
6.6 JURISDICTION BY AGREEMENT
6.7 JURISDICTION IN CONSEQUENCE OF DEFENSE
6.8 INVESTIGATION OF JURISDICTION
6.9 TRANSFER (ISO)
7. PARTIES AND ADVOCATES
7.1 CAPACITY TO BE A PARTY
7.2 ADVOCATES
8. COMMENCEMENT OF LITIGATION
8.1 TYPES OF CLAIMS - OVERVIEW
8.2 LITIGATION FOR PERFORMANCE
8.3 LITIGATION FOR CONFIRMATION
8.4 LITIGATION FOR CREATION
9. SUBJECT MATTER (SOSHO BUTSU)
9.1 INTRODUCTION
9.2 PARTIAL CLAIM
10. COMPLAINT (SOJYO)
10.1 BENEFIT OF SUIT (UTTAE NO RIEKI)
10.2 STANDING (TOJISHA TEKIKAKU)
10.3 MATTERS TO BE STATED IN THE COMPLAINT
10.4 EXAMINATION OF COMPLAINT AND SERVICE
11. EFFECT OF COMMENCEMENT OF SUIT
12. TRIAL (SHINRI)
12.1 COMMENCEMENT OF TRIAL
12.2 COMMENCEMENT OF ORAL ARGUMENT
12.3 PROCESS TO ARRANGE POINTS AT ISSUE AND COLLECTIVE EXAMINATION OF EVIDENCE
12.4 CONCLUSION OF ARGUMENT AND RENDERING OF JUDGMENT
13. DIRECTION AND CONTROL OF PROCEEDINGS
14. ADVOCACY (BENRONSHUGI) AND JUDICIAL INVESTIGATION (SHOKKEN TANCHISHUGI)
14.1 OVERVIEW
14.2 BURDEN OF PROOF
15. GENERAL RULES FOR ORAL ARGUMENT
15.1 OVERVIEW
15.2 GUIDING PRINCIPLES CONCERNING EXAMINATION AT ORAL ARGUMENT
15.2.1 Principle of Public Trial (Kokaishugi)
15.2.2 Principle of Oral Statement (Kotoshugi)
15.2.3 Principle of Directness (Chokusetsushugi)
15.2.4 Principle of Collective Examination (Shuchu Shinrishugi)
15.2.5 Principle of Scheduled Examination (Keikaku Shinrishugi)
16. PREPARATION FOR ORAL ARGUMENT - PRE-TRIAL PROCEEDINGS
16.1 TRIAL TO BE CONCENTRATED ON POINTS OF DISPUTE (SOTEN JUSHIN SHINRI)
16.2 BRIEF (JUNBI SHOMEN)
16.3 PRE-TRIAL ARRANGEMENT OF POINTS OF DISPUTE AND EVIDENCE (SOTEN SEIRI)
17. COMMENCEMENT OF ORAL ARGUMENT PROCEEDINGS
17.1 PLEAS ON THE MERITS AND THE MANNER OF CHARGE AND DEFENSE
17.2 DOCUMENTATION OF ORAL ARGUMENT AND RECORD OF SUIT
17.3 FAILURE TO DILIGENTLY PROSECUTE BY A PARTY - FAILURE TO APPEAR
18. EVIDENCE AND PROOF
18.1 PRINCIPLE OF FREE DETERMINATION BY THE COURT (JIYU SHINSHOSHUGI)
18.2 FACTS TO BE PROVED (YOSHO JIJITSU)
18.3 APPLICABLE PROVISIONS OF LAW
18.4 SCIENTIFIC OR EXPERT FACTS
18.5 FACTS WHICH NEED NOT BE PROVEN
18.5.1 Admissions (Jihaku)
18.5.2 Self-Evident Facts (Kencho na Jijitsu)
19. EXAMINATION PROCEDURES
19.1 OFFER OF EVIDENCE
19.2 EXECUTION OF EXAMINATION OF EVIDENCE
19.3 DUTY TO TESTIFY
19.3.1 Obligation to be a Witness, Right to Refuse to Testify and Perjury
19.3.2 Exceptions to the Duty to Testify
19.3.3 Perjury
19.4 ORDER OF WITNESS EXAMINATION
19.5 EXPERT WITNESSES
19.6 DOCUMENTARY EVIDENCE
19.7 ORDER TO SUBMIT DOCUMENTS
19.8 BURDEN OF PROOF
20. CONCLUSION OF LITIGATION
20.1 FINAL JUDGMENT
20.2 EFFECT OF JUDGMENT - RES JUDICATA
20.3 WITHDRAWAL, ABANDONMENT/ADMISSION OF CLAIM, JUDICIAL COMPROMISE
21. MULTIPLE CLAIMS AND PARTIES
21.1 MULTIPLE CLAIMS
21.2 CROSS-ACTION
21.3 JOINT ACTION (KYODO SOSHO)
21.4 REPRESENTATIVE PARTY (SENTEI TOJISHA)
21.5 INTERVENTION (SOSHO SANKA)
22. APPEALS (JOSO)
22.1 KOSO APPEAL
22.2 JOKOKU APPEAL
22.3 KOKOKU APPEAL
23. RETRIAL (SAISHIN)
24. INTERNATIONAL JUDICIAL AIDE
II. ALTERNATIVE DISPUTE RESOLUTION
25. INTRODUCTION
26. ARBITRATION
26.1 OVERVIEW
26.2 TYPES OF ARBITRATION
26.3 INSTITUTIONAL ARBITRATION
26.3.1 General
26.3.2 The Japan Commercial Arbitration Association
26.3.3 The Japan Shipping Exchange
26.3.4 Arbitration Centers Established by Local Bar Associations
26.3.5 Construction Disputes Committee
27. THE ARBITRATION LAW
27.1 GENERAL
27.2 SCOPE OF APPLICATION
27.3 ARBITRATION AGREEMENT
27.3.1 Form of Arbitration Agreement
27.3.2 Arbitrability
27.3.3 Separability
27.3.4 Consumer Arbitration and Individual Employment Arbitration
27.3.5 Effect of Arbitration Agreement
28. ARBITRATORS
28.1 QUALIFICATIONS
28.2 APPOINTMENT OF ARBITRATORS
29. CHALLENGE OF ARBITRATORS
29.1 GROUNDS FOR CHALLENGE AND DUTY OF DISCLOSURE
29.2 CHALLENGE PROCEDURE
29.3 REMOVAL OF ARBITRATORS
29.4 IMMUNITY OF ARBITRATORS
29.5 CORRUPTION OF ARBITRATORS
29.6 REMUNERATION OF ARBITRATORS
30. ARBITRAL PROCEEDINGS
30.1 GENERAL
30.2 COMMENCEMENT OF ARBITRAL PROCEEDINGS
30.3 WRITTEN NOTICE IN ARBITRAL PROCEEDINGS
30.4 APPOINTMENT OF PRESIDING ARBITRATOR
30.5 COURT ASSISTANCE IN TAKING OF EVIDENCE
30.6 REPRESENTATION
30.7 APPLICABLE LAW
30.8 SETTLEMENT
30.9 INTERIM MEASURES OF PROTECTION
30.10 PLEA AS TO THE JURISDICTION OF THE ARBITRAL TRIBUNAL
30.11 COSTS OF ARBITRATION
31. ARBITRAL AWARD
31.1 MAKING OF THE AWARD
31.2 FORM OF THE AWARD
31.3 SETTING ASIDE OF THE ARBITRAL AWARD
31.4 ENFORCEMENT OF THE AWARD
31.5 ENFORCEMENT OF FOREIGN ARBITRAL AWARDS
32. COURT JURISDICTION
33. CONCILIATION
33.1 GENERAL
33.2 COURT-ANNEXED CONCILIATION UNDER THE CIVIL CONCILIATION LAW
33.3 CONCILIATION OUTSIDE THE COURT
34. ADR LAW
34.1 GENERAL
34.2 GENERAL PROVISIONS OF THE ADR LAW
34.3 ACCREDITATION OF PRIVATE DISPUTE RESOLUTION SERVICES
34.4 PRIVILEGES GRANTED WITH ACCREDITATION
34.5 QUALIFICATIONS OF THE PERSON CONDUCTING THE PROCESS
Index
Back Cover

Systemvoraussetzungen

Als PDF speichern Als Link merken