JBA Oral Exam flashcards

32 cards. Read the term and the definition here. The deck at the top of this page is optional.

Article 9 renunciation of war

The Japanese Constitution renounces war as a sovereign right, prohibits the threat or use of force to settle international disputes, and states that land, sea, and air forces and other war potential will never be maintained.

Article 96 amendment procedure

Constitutional amendments require a concurring vote of two-thirds or more of all members of each House of the Diet and a majority of all votes cast at a referendum or election specified by the Diet.

Judicial review power

Article 81 gives the Supreme Court, as the court of last resort, the power to determine the constitutionality of any law, order, regulation, or official act; lower courts also exercise this power in concrete cases.

Popular sovereignty principle

The Preamble and Article 1 establish that sovereign power resides with the people, and the Emperor derives his position from the will of the people, functioning as a symbol of the State and of national unity.

Article 31 due process

No person may be deprived of life or liberty, or subjected to any other criminal penalty, except according to procedure established by law; courts have extended this protection to property and other rights.

Administrative guidance

An administrative guidance is an act by which an agency seeks a party's voluntary cooperation without legal compulsion; it is not a disposition and generally cannot be challenged by a revocation action.

Standing in revocation actions

Under Article 9 of the Administrative Case Litigation Act, a plaintiff must have a legal interest in seeking revocation; interests of a broad, general nature do not suffice, while individual concrete interests affected do.

Revocation action filing period

A revocation action must be filed within six months from the day the plaintiff knew of the disposition, and within one year from the date of the disposition, unless justifiable reasons excuse the delay.

Administrative appeal system

The Administrative Appeal Act provides for a request for reconsideration to the administrative agency and a request for re-investigation; a decision on the original application is generally required before an appeal is available.

State liability for officials

Article 1 of the National Compensation Act makes the State or a public entity liable for damage caused by the illegal act of a public official in the exercise of public authority.

Majority age in Japan

Under the Civil Code as amended effective April 2022, a person attains majority at 18 years of age; minors may act only through a legal representative, subject to statutory exceptions.

Prescription of claims

A claim is extinguished by prescription when the obligee has not exercised it for five years from knowledge of the right and the obligor, or ten years from when the right became exercisable.

Tort liability elements

Article 709 requires an intentional or negligent violation of another's rights or legally protected interests, resulting in damage, with causation between the act and the damage.

Guarantee contract in writing

A contract of guarantee must be in writing under Article 446(2) of the Civil Code; the 2017 amendments add information duties and公证書 requirements for certain non-business guarantors.

Numerus clausus of real rights

Article 175 of the Civil Code provides that real rights may not be created by agreement except as provided by law; the categories are ownership, possession, superficies, servitude, pledge, mortgage, and lien.

Stock company governance organs

A stock company has a shareholders' meeting, directors, and company auditors; alternative structures include the committee-set company and the audit and supervisory committee company introduced in 2015.

Limited liability of shareholders

Shareholders of a stock company are liable only up to the amount of their contributions and are not personally liable for the company's debts beyond their subscribed shares.

Director duty of loyalty

Under Companies Act Articles 330 and 355, directors owe the company a duty of care and a duty of loyalty; transactions with a director require board approval under Article 356.

Commercial prescription period

Claims arising from commercial transactions are extinguished by prescription after five years under Article 522 of the Commercial Code, unless a shorter period is otherwise provided.

Commercial registration effect

Matters required to be registered must be entered in the commercial register; registration is effective against third parties only from the time it is actually registered.

General venue rule

Under Article 4 of the Civil Procedure Code, an action is generally brought in the court having jurisdiction over the defendant's domicile; special venues exist for torts, contracts, and property claims.

Default judgment

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 restoration within two weeks.

Res judicata effect

A final and binding judgment has res judicata effect on the claims adjudicated under Article 114, binding the parties, their successors, and persons holding rights in the parties' names.

Appeal filing period

An appeal to the appellate court must be filed within two weeks from the date of service of the judgment under Article 285 of the Civil Procedure Code.

Provisional remedies

Under the Civil Provisional Remedies Act, a provisional attachment or provisional disposition may be granted where the applicant shows the claim and the necessity of preservation, often with security.

Principle of legality

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 under the Constitution and the Penal Code.

Self-defense and necessity

Article 36 permits acts of self-defense against an imminent unlawful infringement, and Article 37 permits acts of necessity to avoid imminent danger, both negating illegality.

Mistake of fact

A mistake of fact may negate intent and thus exclude liability for an intentional crime, whereas a mistake of law generally does not excuse under Article 38 of the Penal Code.

Age of criminal responsibility

Under Article 41 of the Penal Code, a person under 14 years of age is not punishable; a person who is insane is not punishable, and diminished capacity reduces punishment.

Arrest warrant requirement

Except for flagrante delicto and quasi-flagrante delicto under Articles 212 and 213, a suspect may be arrested only under a warrant issued by a judge.

Detention period limits

After arrest the suspect must be brought before a judge within 48 hours; the judge may detain for 10 days, extendable by 10 days, with further extension only for certain offenses.

Indictment-only principle

Under Article 256 of the Criminal Procedure Code, prosecution begins only by indictment, and the indictment must not be accompanied by documents that may prejudice the judge.