법문화의 관점에서 바라본일본 최고재판소의 소극적 위헌심사 경향

Abstract

Judicial review works as a tool of the judicial branch to fulfill the notion of check and balance under the separation of powers. Although Japan adopted the judicial review system from the United States, the Supreme Court of Japan is well known for judicial restraint, only having ten cases ruled as unconstitutional since its foundation in 1947. Previous studies focus on the heavy workload of the Supreme Court, the lack of democratic legitimacy of the judicial branch, the intervention of the Cabinet Legislation Bureau and the Legislative Bureau of the House of Representatives, and the inefficient bureaucracy of the Court as the cause of judicial restraint. Given that the Constitutional Court of the Republic of Korea went through similar institutional problems as those of Japan but still manages to pursue judicial activism, it is necessary to analyze the judicial restraint of the Supreme Court of Japan in terms of legal culture, since it affects the perception of individual judges. This article aims to characterize the aspects of legal culture in Japan and analyze its impact on the tendency of judicial restraint by the Supreme Court of Japan. In inferring the legal culture of Japan, this article used three legal TV dramas broadcasted in the past ten years, a movie based on the Japanese criminal justice system, and public poll results as references. Court dramas and movies regarding the criminal justice system tend to cover false charge cases and depict the common perception that receiving the verdict of not guilty is nearly impossible in these cases even if a person who is in charge is innocent. These works also depict legal professionals who seek to find justice or the substantial truth as unconventional, even eccentric, nonchalant about getting social recognition. Moreover, judges and public prosecutors are rather depicted as individuals conformed to the bureaucracy. By analyzing these works, this article inferred the principle of harmonization, the tendency to conform to existing social norms, the low level of social expectation regarding the fair trial and righteous legal professionals as principal characteristics of legal culture in Japan. These features of legal culture are well reflected in the judicial review of the Supreme Court of Japan. The cultural tendency to avoid conflict solidifies the predetermined composition of the judges and the tendency of the Supreme Court to give utmost discretion to the legislative and the executive branch. Also, the lack of interest in the fair trial and righteous legal professions lowers the social expectation for the judgment of unconstitutionality, which in turn lets the Supreme Court lean towards judicial restraint by adhering to existing social norms.