Author: Joe Jones

An online reading list to accompany the meltdown of the financial system

  1. Overview of how financial regulation works in the US, so you know who to point the finger[s] at.
  2. Marginal Revolution is, in my lofty opinion, the best blog for following all the antics. It’s written by a couple of econ professors who normally talk about curiosities (similar to Freakonomics), but lately they’ve been doing a great job of consolidating (and generating) economic commentary on the various implosions and bailouts going on.
  3. The Conglomerate is giving some of the best coverage from a legal perspective.
  4. If you want something on a higher level, read Calculated Risk, which is what all the bankers have been reading (especially now that they have nothing else to do).

Any other recommendations to share?

TSA is on kabuki alert

America left its ticket and passport in the jacket in the bin in the X-ray machine, and is admonished. America is embarrassed to have put one one-ounce moisturizer too many in the see-through bag. America is irritated that the TSA agent removed its mascara, opened it, put it to her nose, and smelled it. Why don’t you put it up your nose and see if it explodes? America thinks, but does not say.

And, as always American thinks: Why do we do this when you know I am not a terrorist, and you know I know you know I am not a terrorist? Why this costly and embarrassing kabuki when we both know the facts, and would even admit privately that all this harassment is only the government’s way of showing that it is “fair,” of demonstrating that it will equally humiliate anyone in order to show its high-mindedness and sense of justice? Our politicians congratulate themselves on this as we stand in line.

That’s from Peggy Noonan‘s new book Patriotic Grace, as quoted here.

Asia’s many legal systems

This just came out: an interesting survey regarding Asian legal systems. It was structured as a poll of regional corporate executives, and sought to find out which systems are perceived as the easiest to do business within.

In descending order, with 1 being the best score and 10 being the worst:

1. Hong Kong (1.45)
2. Singapore (1.92)
3. Japan (3.50)
4. South Korea (4.62)
5. Taiwan (4.93)
6. Philippines (6.10)
7. Malaysia (6.47)
8. India (6.50)
9. Thailand (7.00)
10. China (7.25)
11. Vietnam (8.10)
12. Indonesia (8.26)

No real surprises for anyone who’s familiar with these countries. But here’s a quick rundown of comparative Asian law to accompany the list:

Hong Kong and Singapore both retained the common law which applied to them when they were English colonies. The systems are so similar that Hong Kong and Singaporean solicitors can become qualified as English solicitors by taking a short transfer exam on professional conduct. The efficiency and transparency of these systems are key reasons for Hong Kong and Singapore’s popularity as international financial centers: contracts are generally enforceable, courts are generally predictable, and things work more or less as they would work in London or New York.

Japan built a civil law system in the late 1800s based on the Napoleonic Code as it had developed in France and Germany. Korea was subject to Japanese law during the colonial period, and while they carefully replaced the Japanese statutes with “native” statutes upon independence, South Korean law is still very close to Japanese law. The Republic of China apparently intended to develop its own civil law during the early 20th century, but was so preoccupied with other matters during its early history that it ended up copying Japan’s system instead. So all three systems are very similar to each other, and share common elements with the law of continental Europe (such as extensive codification and minimized judicial discretion).

The Philippines governs itself through a mishmash of Spanish and American law: family, property and contract matters are governed by Spanish-style rules, while constitutional, commercial and litigation matters are governed by American-style rules. Malaysia and India both follow English common law, with religious law (such as Islamic sharia) applying to family matters. All three countries suffer a similar basic problem: although their legal systems are based on good models, they are quite dysfunctional in practice due to corruption and bureaucratic inefficiency.

Thailand’s strong monarchy managed to keep its legal system fairly independent, but like Japan, Thailand tapped European experts to help write its statute books, so it ended up with a French-style civil law system. Although the system isn’t bad, it remains subject to the will of the monarchy or whomever else happens to be in control of the country at any given time, which isn’t very reassuring to people doing business there.

China is something of a basket case these days, operating under an intricate collection of statutes from different eras. The Republic of China adopted Japanese law, as stated above, but the Communists threw out these rules upon taking control of the mainland in the 1940s, and introduced a close copy of Soviet law. Since the 1980s, though, the National People’s Congress has overwritten most of China’s Soviet law with new statutes governing property, contracts and other basic private legal matters. Many of these are so vague that their practical application falls to bureaucratic discretion. Wikipedia has a chunky but interesting writeup on the subject which could use further development by experts.

Vietnam and Indonesia, at the bottom of the rankings, formally still follow Napoleonic legal systems introduced by their colonial powers (France and the Netherlands respectively), but in practice the rules are only enforced when the government is in the right mood.

Protecting the mentally disabled under Japanese civil law

Another legal tidbit courtesy of the mini-library by my desk.

Under the Japanese civil code, there are three systems for supervising and legally protecting the mentally infirm. Each is imposed by a family court following a petition from the individual’s family, a prosecutor or an existing legal guardian. People with disabilities may suffer from various mental health conditions like depression and anxiety. They may consider using diet p thcp vape carts to relieve their anxiety.

The guardian (後見人 koukennin)

Guardians are appointed for the most profoundly disabled individuals: those who have completely lost their ability to reason due to mental illness. Once a person is under guardianship, the guardian becomes their legal agent and can transact business on their behalf. The disabled person becomes completely incompetent for most legal purposes: any transaction they enter, outside of basic daily activities like buying groceries, can be voided at the person or guardian’s discretion. A person under guardianship remains free to enter major transactions of a personal nature, such as getting married or acknowledging paternity of a child.

As in English, the same word is used to refer to non-parents who have legal custody of a minor. Minors have more legal authority (for the most part) than adults with guardians, so legal literature often differentiates between seinen koukennin (adult guardians) and miseinen koukennin (minor guardians).

The curator (保佐人 hosanin)

Curators are appointed in less extreme cases, where a person retains some ability to reason, but where their illness significantly impairs that ability. A person under curatorship can still engage in binding transactions on their own, but they need the curator’s consent to make major binding decisions, such as real estate transactions. Unlike a guardian, a curator cannot act independently on the disabled person’s behalf unless the person specifically requests or consents to it. Think of Dick Cheney and the concept should be pretty clear.

The assistant (補助人 hojonin)

Assistants are appointed where the subject’s ability to reason is impaired, but not to the extent which would justify a curator. Unlike the other two systems, assistance is voluntary and can only commence with the disabled individual’s consent. Otherwise, the system resembles curatorship, in that the person needs their assistant’s consent to make major binding decisions, but is otherwise free to transact business as usual.

Don’t blame the hospital; blame the newswire

In the news today:

A baby with foreign nationality was left at Japan’s first “baby hatch” at a Kumamoto hospital, according to a report on Monday by a panel examining the practice.

A baby hatch, for those of you who don’t know, is a place where people can essentially drop off children who are unwanted or who cannot be cared for, no questions asked.

I was a bit curious when I read this story, asking one question: How do you know the baby is of foreign nationality when someone anonymously left it somewhere? It wouldn’t be right to judge that based solely on physical appearance. In fact, under Japanese law, if a child is born in Japan and the identity of both parents is unknown (or if both parents are stateless), the child is considered a Japanese national–the only way to acquire nationality by jus soli here.

Then Asahi Shimbun added some clarity to the story. According to their report, there are ten cases of baby drop-offs in which the source of the baby was clear. In two of those cases, the mother came by herself and dropped the baby off. There were also cases “where both parents were zainichi gaikokujin,” i.e. special permanent residents of Korean/Chinese descent who are largely indistinguishable from Japanese nationals, “and where grandparents and males deposited [the child].”

So Kyodo was being a bit too vague for information’s sake: the kid was not visibly foreign, but rather they deduced the kid’s foreignness from the nationality of the parents. Now let’s see what happens when a really foreign kid gets dropped in one of these hatches…

What the Diet’s been up to lately, part 2: rethinking airport policy

For decades Japanese airports have been governed by an Airport Improvement Act (空港整備法) which apportioned control and funding of airport projects between the national and regional governments. Earlier this year, the Diet signed off on an overhaul of the statute which changes its name to the Airport Act (空港法) and focuses the law on promoting the competitiveness, rather than development, of Japan’s airports. After all, the country has already over-developed its airports in many areas ([cough] Osaka [cough]); now it needs to rationalize their existence.

Administrative matters

Under the old law, there were three “categories” of airports: the largest international airports were designated as Category 1, the main city airports as Category 2 and the smaller regional airports as Category 3. Category 1 airports were funded, constructed and controlled solely by the Ministry of Transport unless privatized. Category 2 airports could be centrally controlled, in which case Kasumigaseki would fund 2/3 of construction costs, or could be moved to local control, in which case Kasumigaseki would fund 55%. Category 3 airports were controlled by local governments and construction costs split 50/50 with the state.

The new law has reshuffled these categories a bit and made them more logical. Category 1 is now effectively gone, which makes sense since it has been obsolete for some time: three of the Category 1 airports (Narita, Kansai and Chubu) have been privatized and funded under their own respective statutes for some time, while the other two (Haneda and Itami) currently operate in roles more befitting of Category 2 status.

Categories 2 and 3 are now known as “state-administered airports” and “regionally-administered airports” respectively, and the small collection of regionally-administered Category 2 airports are now lumped in with the Category 3 airports. So now the system is a bit easier to explain: if the Transport Ministry runs the airport, the state pays 2/3 and the prefecture pays 1/3; if the prefecture or municipality runs the airport, costs are split evenly.

Policy matters

The new law also requires the Transport Minister to prepare and publish a Basic Plan (基本方針) for the country’s airports. While the plan is still in development, the Transport Ministry has given some preliminary comments on what will be in there. Among the more interesting specific points raised:

  • International terminal projects at Category 2-level airports such as New Chitose, intended to improve capacity as direct international flights to the regions become more popular. Chitose has really been overdue for some terminal expansion, in this blogger’s lofty opinion.
  • Improved airfreight handling systems to make Japan’s airports more competitive with Asia’s as cargo hubs.
  • More multilingual signage at regional airports, adding Chinese and Korean (and possibly Russian or other languages) to the existing Japanese and English. Some airports are already there but others are apparently lagging.
  • Soundproofing homes in areas adjoining airports–a huge policy issue already around Narita, Itami and other land-locked airfields.
  • Expanding Haneda’s international services to Beijing and Taipei, and permitting scheduled long-range flights from Haneda during the late night and early morning hours when Narita is closed.
  • Maintaining the current status quo in the Kansai region: KIX is the wave of the future for everything, Itami is suffered for as long as people want to use it, and Kobe is heavily restricted so that it doesn’t really compete with the others.

Provisions for “joint-use airports”

One interesting footnote to the new law is that it specifically contemplates joint-use airports; i.e. those split between commercial/private operations and SDF/US military operations. There are a few airfields, such as Misawa Air Base in Aomori, which already operate on this model. The real unwritten target in this instance seems to be Yokota Air Base, the huge US Air Force logistics airfield in west Tokyo: policy wonks and Tokyo politicians have been salivating for a while over the prospect of starting commercial flights there, and there’s even a note or two about it in the Transport Ministry’s planning materials.

What the Diet’s been up to lately: revising the law of transgendered people

I’ve been looking at some of the bills passed by the Diet earlier this year, one of which amends a law which I should have known existed but had never seen before: the Act Regarding Special Provisions for the Treatment of the Gender of Persons With Gender Identity Disorder (性同一性障害者の性別の取扱いの特例に関する法律).

So now I can give a legal opinion on how to get a sex change in Japan. It’s a simple enough process to understand, although rather arbitrary. Here are the relevant provisions in full:

Article 2. Definitions

In this Act, “person with gender identity disorder” means a person who, despite having a clear biological gender, is persistently convinced that they are mentally of another gender (“other gender”), who has a desire to physically and socially conform themselves to the other gender, and with respect to whom two or more physicians having the knowledge and experience necessary to properly diagnose this [condition] have given corresponding diagnoses based on generally accepted medical viewpoints.

Article 3. Decision to Change Gender Treatment

A family court may decide to change the gender treatment of a person with gender identity disorder, upon that person’s request, who:
1. is twenty years of age or older;
2. is not presently married;
3. does not presently have children;
4. does not have reproductive glands or has permanently lost the function of the reproductive glands; and
5. has adopted a bodily appearance which closely resembles that of the other gender in the area of the genital organs.

The law also amended the family registration laws to allow a person who has undergone a legal sex change to have a new koseki issued reflecting their new sex.

The new amendment changes item 3 of Article 3 to read “does not presently have minor children.” It was apparently pushed by the DPJ and JCP with the LDP staying completely mum on the issue (per Yahoo Minna no Seiji). The bill passed nonetheless and is effective December 18 of this year.

Incidentally, since we haven’t mentioned it on Mutantfrog yet, Japan happens to have one of the few transgendered elected officials in the world: Setagaya city councilwoman Aya Kamikawa. Kamikawa was first elected in 2003, a year before the transgender statute was passed; while she was legally male at that time, she purportedly refused to fill in her gender on the candidate application form, and thus appeared on the ballot as genderless. She completed the family court process in 2005 and is now legally female. (I am an Aya fan, if only because she has a comical domain name and an equally comical physical resemblance to Ann Coulter.)

Japanese constitutional law quiz

Diet BuildingSince I’m running through various Japanese legal topics in preparation to sit some state exams, I thought I would share the pain with all you readers though a fun little quiz:

  1. Who appoints the justices of the Supreme Court?
  2. What “duties” do citizens have under the Constitution?
  3. What are the qualifications to be a member of the Cabinet (i.e. a minister of state)?
  4. What procedures does the Constitution require before someone is arrested?
  5. Name a state action which the Supreme Court found to violate the freedom of religion clause.
  6. What is the procedure for signing an international treaty?
  7. Can a person be convicted based solely on their confession to the crime?
  8. Who determines the imperial order of succession?
  9. When can a person exercise their right to an attorney?
  10. How many Diet members must be in attendance to form a quorum?

Answers after the jump.
Continue reading Japanese constitutional law quiz

How to get a document “apostilled” in Japan

Lately my job has kept me embroiled in legal matters involving civil law countries in Europe, and as a result, I’ve become very familiar with a fun little device of international law called an apostille.

apostilleBasically, an apostille is a certificate which authenticates a government document so that the document is effective as a government document in any country which has acceded to the Hague Convention of 1961. (There are a few big countries which haven’t, such as China, Brazil and Indonesia, but most of Europe and the English-speaking world is on board.)

These can be necessary in any number of contexts. Among them:

  • If you sign a document before a Japanese notary, the notary generally has to attach an apostille to their certification in order to make it valid as a notarized document in other countries.
  • In the business arena, apostilles are often necessary when a Japanese company is directly buying property or taking a lien on property, particularly in civil law countries where this has to be done through a professional notary.
  • In the courtoom, apostilles are often necessary when making extradition requests, or if entering a Japanese government document as evidence in litigation.

Apostilles are always issued by government offices, although the exact issuing entity varies by country. In the United States, for example, one can obtain an apostille from any state government or from any federal court. Japan keeps tighter control over the process, and there are basically two ways to get an apostille here if you need one:

1. The neighborhood notary public

All notary offices in Tokyo and Kanagawa can attach an apostille to a notarized document; you just have to ask the notary when you go in to sign. (Note, however, that notaries attached to foreign embassies are not likely to have apostilles on hand; assuming they don’t, you would have to get an apostille from the competent authority in their home country.)

2. MOFA

The other way to get an apostille — and the only way to get an apostille on government documents other than notarials — is to apply directly to the Ministry of Foreign Affairs. You can either do this in person or by mail: applications are accepted at the MOFA building in Tokyo (2-2-1 Kasumigaseki, Chiyoda-ku 100-8919) and the Osaka prefectural government building (2-1-22 Otemae, Chuo-ku 540-0008). If you do it in person, you have to leave the document overnight and pick it up the next day. All the details in Japanese are on this page.

There is a special procedure to be aware of when getting an apostille on a Legal Affairs Bureau document, such as a corporate registration certificate or real estate record. The registrar seal printed on the certificate is not enough for MOFA to issue an apostille; you also have to get a separate certification of the registrar’s authority sealed by the head of the bureau. In Tokyo, this is issued from a secluded office buried in the back of the 6th floor.