JBA Oral Exam cheat sheet

The Constitution of Japan has 103 articles and comprises a Preamble, the Emperor (Ch. 1), renunciation of war (Ch. 2, Art. 9), rights and duties of the people (Ch. 3), the Diet (Ch. 4), the Cabinet (Ch. 5), the Judiciary (Ch. 6), Finance (Ch. 7), local self-government (Ch. 8), amendment (Ch. 9, Art. 96), and supreme law (Ch. 10, Art. 98).

Article 9: the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as a means of settling international disputes; land, sea, and air forces and other war potential are never to be maintained; the right of belligerency of the state is not recognized.

Article 96 amendment procedure: initiation by a concurring vote of two-thirds or more of all members of each House, followed by a majority of all votes cast at a referendum or such election as the Diet shall specify.

Three principles of the Constitution: popular sovereignty (Preamble, Art. 1), fundamental human rights (Art. 11, Art. 97), and pacifism (Art. 9).

Equality rule (Art. 14): all people are equal under the law; no discrimination in political, economic, or social relations because of race, creed, sex, social status, or family origin; the peerage is abolished.

Due process clause (Art. 31): no person shall be deprived of life or liberty, or subjected to any other criminal penalty, except according to procedure established by law; it is construed as also protecting property and other rights.

Judicial review: the Supreme Court is the court of last resort with power to determine the constitutionality of any law, order, regulation, or official act (Art. 81); lower courts also exercise this power (concrete review).

Emperor is the symbol of the State and of the unity of the people, deriving position from the will of the people with whom sovereign power resides (Art. 1); all acts of the Emperor in matters of state require the advice and approval of the Cabinet (Art. 3).

Article 25: all people shall have the right to maintain the minimum standards of wholesome and cultured living; the State must promote social welfare, social security, and public health.

Article 21 guarantees freedom of assembly, association, speech, press, and all other forms of expression, and prohibits censorship; the Cabinet may restrict it only within the framework of judicial review under the clear-and-present-danger standard.

Administrative Procedure Act (Gyōsei Tetsuzuki Hō): dispositions must be preceded by an application or ex officio procedure; ex officio dispositions require, where adverse, notice of facts and an opportunity to state a defense (Art. 13), and in certain cases an opportunity for a public hearing (Art. 23).

Administrative Appeal Act (Gyōsei Fufuku Shinsei Hō, 2014): the principal remedies are 審査請求 (request for reconsideration to the administrative agency) and 再調査の請求; an administrative appeal is generally not available if the applicant has not first obtained a decision on the original application, subject to exceptions.

Administrative Case Litigation Act (Gyōsei Jiken Soshō Hō, 2004): four action types - 取消訴訟 (revocation), 無効等確認訴訟 (declaration of nullity), 不作為の違法確認訴訟 (illegality of inaction), and 義務付け訴訟 (mandamus); plus 差止め訴訟 (injunction) added in 2004.

Standing (Art. 9 of the Administrative Case Litigation Act): a person has standing if they have a legal interest in seeking revocation of the challenged disposition; the Supreme Court (Odakyu Line case, 2005) held that interests of a broad, general nature (reflected in the 小田急線高架化事件) do not suffice; a person who has an individual, concrete legal interest affected by the disposition does.

Revocation action filing period (Art. 14): within six months from the day on which the plaintiff knew of the disposition (objective period: one year from the date of the disposition), subject to exceptions for justifiable reasons.

Administrative action review criteria: legality, procedural regularity, and grounds for revocation; a disposition may be revoked where there is illegality or where the agency abused its discretion, judged by whether the decision exceeds the bounds of discretion or is arbitrary.

Administrative guidance (行政指導): an act of administrative guidance is not a disposition, and is not generally subject to revocation action; however, a party who is de facto compelled may have a claim (e.g., if the guidance is effectively coercive).

Delegated legislation: administrative orders (政令, 府省令) must be within the scope of the law, and a violation of the enabling statute renders the order invalid; no administrative agency may independently create rights or obligations without statutory basis (法律の留保).

National Compensation Act (国家賠償法): Art. 1 - the State or a public entity is liable for damage caused by the illegal act of a public official in the exercise of public authority; Art. 2 - liability for defects in the construction or management of public facilities.

Capacity: a person attains majority at 18 years of age (Civil Code Art. 4, as amended, effective 1 April 2022); minors may act only through a legal representative, subject to exceptions for acts permitted by the Civil Code (Art. 5).

Public policy (公序良俗, Art. 90): a juristic act whose object is contrary to public order or good morals is void; this is the general limitation on freedom of contract.

Prescription (消滅時効): a claim is extinguished by prescription when the obligee has not exercised it for five years (where the obligee knows of the right and the obligor) or ten years (from the time the right became exercisable), whichever is shorter (Civil Code Art. 166, as amended).

Acquisition by prescription (取得時効, Art. 162): ownership of immovable property is acquired by 20 years of peaceful, public, and continuous possession in good faith (10 years if in good faith and without negligence).

Torts (不法行為, Art. 709): a person who intentionally or negligently violates the rights or legally protected interests of another and causes damage is liable to compensate; liability requires (1) violation of rights/legally protected interest, (2) intent or negligence, (3) damage, and (4) causation.

Default liability (履行遅滞): where performance is delayed, the obligor is liable for damages, and the debtor is in default from the time of demand (Art. 412); in contracts with a fixed time for performance, default begins at the time of the agreed performance date (Art. 412(2)).

Contract formation: offer and acceptance (Art. 521 et seq.); the Civil Code provides for 承諾期間, 隔地者間の契約 (cross-border contracts), and the effect of the declaration of intention (意思表示) under Art. 93–98.

Statute of frauds for suretyship: a contract of guarantee (保証契約) must be in writing (Art. 446(2)); a guarantee by a non-business guarantor is further protected by the 2017 amendments (information duties, 公正証書 for certain guarantees).

Real rights (物権): ownership, possession, superficies, servitude, pledge, mortgage, and 留置権; the numerus clausus principle (物権法定主義, Art. 175) means real rights cannot be created by agreement except as provided by law.

Family law: marriage requires mutual consent of the parties and registration (Art. 739); a person under 18 may not marry (Art. 731, as amended); divorce by agreement (協議離婚) requires registration and, where there are minor children, agreement on custody and visitation.

Commercial Code (商法) applies to merchants (商人) and commercial transactions (商行為); a merchant is a person who conducts a commercial business in his or her own name (Art. 4), and a company is a merchant.

Companies Act (会社法): a company is a 株式会社 (stock company), 合名会社 (general partnership company), 合資会社 (limited partnership company), or 合同会社 (limited liability company, LLC); each has separate legal personality.

Stock company governance: three statutory organs are the shareholders' meeting, directors (取締役), and company auditors (監査役); a 委員会設置会社 (committee-set company) and, since 2015, a 監査等委員会設置会社 (audit and supervisory committee company) are alternative structures.

Board of directors (取締役会) must be established in a stock company with transfer-restricted shares or with a board of directors; it appoints and dismisses directors, supervises directors' performance, and decides important business matters.

Shareholder liability: shareholders are liable only up to the amount of their contributions (有限責任); a 株式会社's shareholders are not liable for company debts beyond their subscribed shares.

Director duties: duty of care and loyalty (善管注意義務 and 忠実義務, Companies Act Art. 330 and Art. 355); a director who breaches these duties is liable to the company for damages (Art. 423), and a transaction with a director requires board approval (Art. 356).

Commercial registration (商業登記): matters required to be registered by the Commercial Code and Companies Act must be registered in the commercial register; registration is effective against third parties only from the time it is registered (Art. 9 Commercial Code; Companies Act Art. 908).

Commercial prescription (商行為の時効): claims arising from commercial transactions are extinguished by prescription after five years (Commercial Code Art. 522), unless otherwise provided.

Bills and notes: a bill of exchange (為替手形) and promissory note (約束手形) are governed by the Bills and Notes Act; a holder in due course takes free of personal defenses, and a check (小切手) must be presented within 10 days of the date of issue.

Jurisdiction: the court of general venue is the court having jurisdiction over the defendant's domicile (Civil Procedure Code Art. 4); special venues exist for tort claims (place of the tort, Art. 5(9)), contract claims (place of performance), and property claims (place of the property).

Filing requirements (Art. 133): a complaint must state the parties, the claim, and the cause of action; if the complaint lacks these, the presiding judge orders correction and may dismiss it if not corrected.

Service of process (送達): documents are served by postal mail, by a court clerk, or by 公示送達 (service by public notice) where the party's whereabouts are unknown; service by public notice takes effect when posted on the court's bulletin board for two weeks.

Default judgment (欠席判決, Art. 159): if the defendant fails to appear at the first oral argument and does not submit a prepared statement, the court may render judgment on the pleadings; the defendant may seek a retrial (原状回復, Art. 292) within two weeks of learning of the judgment.

Burden of proof: the party asserting a fact must prove it (Art. 251); the court may examine evidence ex officio only in limited circumstances, and the standard is the judge's free evaluation (自由心証主義, Art. 247).

Res judicata (既判力): a final and binding judgment has res judicata effect on the claims adjudicated (Art. 114); the effect extends to the parties, their successors, and persons who hold rights or obligations in the name of the parties.

Appeal: an appeal (控訴) to the appellate court must be filed within two weeks from the date of service of the judgment (Art. 285); a final appeal (上告) to the Supreme Court is available only for constitutional violations or serious procedural errors (Art. 312).

Provisional remedies: a provisional attachment (仮差押え) and provisional disposition (仮処分) are available under the Civil Provisional Remedies Act; the court may require security (担保) and the applicant must show the claim and the necessity of preservation.

Enforcement: a judgment is enforced through compulsory execution (強制執行) under the Civil Execution Act; a creditor must obtain an execution order (執行文) from the court and may attach the debtor's property.

Principle of legality (罪刑法定主義, Penal Code Art. 31 Constitution): no person may be punished except under a law in force at the time the act was committed; analogical application of criminal law is prohibited.

Structure of a crime: (1) 構成要件該当性 (actus reus and mens rea), (2) 違法性 (illegality), and (3) 有責性 (culpability); defenses such as self-defense (正当防衛, Art. 36) and necessity (緊急避難, Art. 37) negate illegality.

Mens rea (故意): the offender must have known the facts constituting the crime; mistake of fact (事実の錯誤) may negate intent, while mistake of law (法律の錯誤) generally does not excuse (Art. 38).

Attempt (未遂): an attempt is punishable only where the law specifically provides for it (Art. 43); voluntary abandonment (中止犯, Art. 43 but see Art. 43(2)) reduces or exempts punishment.

Complicity (共犯): 共同正犯 (Art. 60) requires two or more persons who jointly commit a crime; 教唆犯 (Art. 61) and 幇助犯 (Art. 62) are distinguished, and the 共犯 principle requires the accessory to have intent to assist.

Theft (窃盗, Art. 235): unlawfully taking another person's property with intent to deprive the owner of possession; robbery (強盗, Art. 236) adds violence or intimidation; fraud (詐欺, Art. 246) requires deception causing a disposition of property.

Homicide (殺人, Art. 199) carries the death penalty, life imprisonment, or imprisonment for not less than five years; injury causing death (傷害致死, Art. 205) is distinguished by the absence of intent to kill.

Culpability and responsibility: a person who is insane (心神喪失) is not punishable (Art. 39); a person of diminished capacity (心神耗弱) has punishment reduced; age of criminal responsibility is 14 years (Art. 41).

Statute of limitations (公訴時効): for a crime punishable by death, 25 years; for life imprisonment, 15 years; for imprisonment of 10 years or more, 10 years; for imprisonment of 5 years or more, 7 years; for other crimes, 5 years (Penal Code Art. 250, as amended).

Arrest: a suspect may be arrested without a warrant only in flagrante delicto (現行犯) or quasi-flagrante delicto (準現行犯) under Art. 212–213; otherwise a warrant (逮捕状) issued by a judge is required (Art. 199).

Detention (勾留): after arrest, the suspect must be brought before a judge within 48 hours (Art. 203–204); the judge may detain for 10 days, extendable by 10 days (Art. 208), with further extension only for certain offenses (Art. 208-2).

Right to counsel: the suspect has the right to consult with counsel (Art. 30, 39); the court must appoint counsel for an indigent suspect in cases where counsel is required (必要的弁護, Art. 36–37, 289).

Prosecution: the public prosecutor has discretion to prosecute (起訴便宜主義, Art. 248); a prosecution may be initiated only by indictment (起訴状, Art. 247), and the indictment must not be accompanied by documents that may prejudice the judge (起訴状一本主義, Art. 256).

Trial: the court must hold a public trial (公開裁判, Constitution Art. 82); the accused has the right to examine witnesses (Art. 304) and the right to remain silent (Constitution Art. 38).

Evidence: confessions obtained by coercion, torture, or prolonged detention are inadmissible (Constitution Art. 38(2)); a confession is not sufficient for conviction without corroborating evidence (補強証拠, Constitution Art. 38(3)).

Exclusionary rule: evidence obtained through illegal search or seizure may be excluded where the violation is substantial (see Supreme Court, 1978, 大阪事件 - 違法収集証拠排除法則).

Appeal: an appeal against a judgment of the court of first instance (控訴) must be filed within 14 days (Art. 373); a final appeal (上告) to the Supreme Court is limited to constitutional violations and serious procedural errors (Art. 405).

Retrial (再審): a final and binding judgment may be retried where newly discovered evidence clearly shows the accused should be acquitted (Art. 435); the request is made to the court that rendered the judgment.